1

PROJECT

SUBMITTED TO

PROF. Dr.S.Subba Rao

TAMILNADU NATIONAL LAW SCHOOL, TIRUCHIRAPPALLI.

In Fulfilment of the Requirements for Internal Component in

Political science -IV

TOPIC: ELECTION COMMISSION OF INDIA

By

Nithyavendan s (Regd. BA0140037)

BA LLB(HONS)-SEC A
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DECLARATION

I, NITHYAVENDAN S do hereby declare that the project entitled ELECTION COMMISSION OF

INDIA submitted to Tamil Nadu National law school in partial fulfilment of requirement of award of degree
in undergraduate in law is a record of original work done by me under the supervision and guidance of
Professor Dr.S.Subba Rao,Department of Political science IV, Tamil Nadu National law school and has not
formed basis for award of any degree or diploma or fellowship or any other title to any other candidate of any
university.

B.A, LL.B (Hons)

ACKNOWLEDGEMENT
First of all, I thank my political science IV teacher Prof Dr.S.Subba Rao for allotting me such a challenging
and dynamic topic. Even repaying him through mere words is beyond the domain of my lexicon that was the
backbone during all hurdles that I confronted during making this project. Hence I am forever duly indebted to
him as a student.

Also, I am grateful to the staff and administration of TNNLS who contributed useful resources tremendously in
the making this project by providing library infrastructure and database connection.

This project would not have been possible without the involvement of precious inputs of friends who sacrificed
their valuable time to guide and advise me in all times of need to make this project a successful one.

Last but not the least I would like to thank the Almighty for giving to courage and strength to with stand all the
hindrances during this project and making it successful finally since its inceptions.
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CERTIFICATE

This is to certify that the POLITICAL SCIENCE-IV research Project on ELECTION COMMISSION OF
INDIA submitted to the Tamil Nadu National Law School; Tiruchirappalli, in fulfilment of the requirements
for internal component for B.A.; LL.B. (HONS.), Third Semester is bonafide research work carried out by
NITHYAVENDAN S under my supervision and guidance. No part of this study has been submitted to any
University for the award of any Degree or Diploma whatsoever.

Table of Contents

INTRODUCTION

RESEARCH PLAN

REVIEW OF LITERATURE

COMPOSITON OF ELECTION COMMISSION

APPOINTMENT OF THE ELECTON COMMISSIONERS.

QUALIFICATION

REGIONAL COMMISSIONER

CONDITIONS OF SERVICE OF THE ELECTION CIOMMISIONERS

SECRETARIAT

EXPENSES

NATURE &SCOPE OF ELECTION COMMISSION POWERS

ELECTION COMMISSION AS A TRIBUNAL

JUDICIAL REVIEW

ELECTORAL MACHINERY

CONCLUSION

BIBLOGRAPHY:
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TABLE OF CASES

A.C Jose v. Sivan Pillai, AIR 1984 SC 921

Election commission of India v. Union of India, 1995 Supp(3) SCC 643
Uma ballavRathv.MaheshwaeMohanty, AIR 1999 SC 1322.
Election Commission of India v. Subramanian Swamy, AIR 1996 SC 1810.
Sadikaliv. Election commission, AIR 1972 SC 187.
Shillong, v. W.A. Sangma ,AIR 1977 SC 2155.
Union of India v. Association for Democratic Reforms and ors, AIR 2002 SC 2112.
Common cause v. Union of India and ors, AIR 1996 SC 3081.
Kanhiya Lal Omar v. RK Trivedi and Ors,1986 AIR 111.
Mohd. YunusSaleemv. Shiv Kumar Shastri, AIR 1974 SC 1218.
Election Commission v. State of Haryana, AIR 1984 SC 1406.
Election Commission of India v. Ashok Kumar, AIR 2000 SC 2979
Lalji Shukla v. Election Commission, AIR 2002 All 73.
Mohinder Singh Gill and Anor v. Chief Election Commissioner and Ors,AIR 1978 SC 851.
Election Commission of India v. State Bank of India, Staff Assn., AIR 1995 SC 1078.
Bhagwati Prasad Dixit Ghorewalav. Rajiv Ghandi, AIR 1986 SC 1534.
T.N.Seshanv.Union of india, (1995)4 SCC 611 AT 625 :(1995)5 JT 337.
S.SDhanoav.Union of India, AIR 1991 SC 1745 :(1991) 3 SCC 567.
Kesavanandbharathi v. state of kerala, AIR 1973 SC1461.
Mohindersingh gill v. chief election commr, AIR1978 SC 851
In KihotoHollohanv.Zachillhu and Ors ,AIR 1993 SC 412.
NP Ponnuswamiv. Returning Officer,Namakkal, AIR 1952 SC 64.
Union of civil libertiesv. Union of India ,2009(2) SCJ 875.
Peoples Union of civil liberties (PUCS) v. Union of India, AIR 2003 SC 2363.
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INTRODUCTION
Superintendence, direction and control of elections to be vested in an election commission1.Democracy is one
of the inalienable basic feature of the constitution of India and forms part of its basic structure2,it is a
government by the people, it is a continual participative operation, not a cataclysmic, periodicexercise. The
little man, in his multitude, making his vote at the poll does a social audit of his parliament plus political choice
of his proxy. Although the full flower of participative government rarely blossoms, the minimum credential of
popular government is an appeal to the people after every term for a renewal of confidence.so we have adult
franchise and general elections as constitutional compulsions3.

In KihotoHollohan v.Zachillhu and Ors4 ,the Supreme court observed that:

Democracy is a basic feature of the constitution. Whether any particular brand or system of government by
itself, has this attribute of a basic feature, as long as the essential characteristic that entitle a system of
government to be called democratic are otherwise satisfied is not necessary to be gone into. Election conducted
at a regular, prescribedintervals, isessential to the democratic system envisaged in the Constitution. So is the
need to protect and sustain purity of the electoral system. That may take within it the quality,efficacy, and
adequacy of the machinery for resolution of electorate disputes.

1 Article 324: Superintendence, direction and control of elections to be vested in an Election Commission(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 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
(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 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 performance of the functions conferred on the Commission by clause ( 1 )
(5) 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 shall not 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 disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the
recommendation of the Chief Election Commissioner
(6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election
Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the
Election Commission by clause ( 1 )

2Kesavanandbharathi v. state of kerala, AIR 1973 SC1461.

3Mohindersingh gill v. chief election commr, AIR1978 SC 851.

4 AIR 1993 SC 412.

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The concept of democracy as visualised by the constitution presupposes the representation of the people in
parliament and state legislature s by the method of election5.Democracy is a part of the basic structure of the of
the constitution and rule of law and free and fair elections are basic features of democracy 6.Democracy based
on free and fair elections is considered as a basic feature of the constitution in the case of
kesavanandaBharati7.

In order to ensure free, fair and impartial elections, the constitution establishes the Election commission, a body
autonomous in character and insulated from political pressures or executive influence. Care has been taken to
ensure that the commission functions as an independent agency free from external pressures from the party in
power, or the executive of the day.

It has an all-India body having jurisdiction over elections to parliament, State legislatures, offices of the
president and the vice president, it is set up as a permanent body under Art 324(1), the reason for having an all
India body to supervise and conduct elections,rather than separate bodies to organise elections in each state, as
states contain racially, linguistically and culturally different from native people, so to avoid discrimination an
all-India body was set up.

RESEARCH PLAN
Research Objective
To Restudy and analyse the function of the Election Commission of India

Research Questions

What is the role election commission in the Indian democracy?

Whether the Election commission exercise its powers to its full extent as given in the art 324 of the
Indian constitution?
Whether the election commission exercises its power unilaterally?

Research Methodology

5NP Ponnuswami v. Returning Officer,Namakkal, AIR 1952 SC 64.

6Union of civil liberties v. Union of India ,2009(2) SCJ 875.

7Peoples Union of civil liberties (PUCS) v Union of India, AIR 2003 SC 2363
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The research methodology that was followed was a qualitative in nature and project involved use of case laws,
amendments and articles enshrined in the Constitutions. Case laws were used to uncover the trends in thought
and opinions in the court of law.

Hypothesis
Through this project the major hypothesis is to enrich the knowledge of the reader regarding the powers and
functioning of the election commission. This project enlightens the readers how the commission works, and
how the structure and appointments of the commissioners in the Commission, removal of them is influenced by
the majority run party in the parliament. The project shows the relationship and position of the Chief and other
election commissioners are equal except in the matters of their removal respectively.
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REVIEW OF LITERATURE

While doing this research paper, the major emphasis was on the two books namely Indian Constitutional Law
by M P Jain and How India Votes by S.K Mendiratta.

Indian constitutional law book by M P Jain was helpful as it has detailed information regarding the constitution,
its bodies,amendments,importance etc., the author was keen on providing full-fledged information about the
whole functioning of the election omission and its issues, his work has helped to fulfil his project to the extent
and can be used to do complete research on the any of the topic as it contains all of the references and case law
which is helpful for any topic relating to the constitution of India.

How India Votes by S.K Mendiratta has detailed information about whole election process, the book is very
helpful in understanding the nature and limit of power of the commission and the power of parliament over that
commission, this book helps to gain knowledge to the full extent of the election process the author has tried to
explain the process in a very broad sense by including all minute details also.

Election Commission and Changing Contours of Politics by ManjariKatju8 the author explains in contrast with
changing times and how parliament run by majority one party influencesthe commission and the economic
changes has brought about change in the commission and its functioning.

COMPOSITON OF ELECTION COMMISSION

The election commission shall consist of the chief election commissioner and number of other election
commissioners, ifany, as the president may from time to time fix. [Art 324(2)]. When any other election
commissioner is so appointed, the chief election Commissioner shall act as the Chairman of the Election
Commission [Art 324(3)].

In S.S Dhanoav.Union of India9,The Supreme court has laid down an important proposition regarding the
composition of the Election Commission.

Until 1989, the election Commission consisted of only the Chief Election Commissioner. In 1989, the Central
Government changed tracks and sought to appoint Election commissioners. The underlying purpose of this
move seems to be to curb the powers of Chief election commissioner who was single handedly the powers of
the election commission. In 1989, by notification issued under Art 324(2), the number of election
commissioners excluding the chief was fixed at two. By another notification the president appointed the
Petitioner and one other person as the Election commissioners as such. The rules made by the president under

8http://www.jstor.org/stable/40279147. (last visited Apr. 15, 2017, 7:45PM(NTM))

9 AIR 1991 SC 1745 :(1991) 3 SCC 567

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Art 324(5) fixed the tenure as 5 years or until they reach the age of 65, whichever is earlier. The questions arose
whether these notifications were constitutionally valid.

The apex court said however observe that when an institution like the Election commission is entrusted with
vital functions and is armed with exclusive and uncontrolled powers to executethem, it is both necessary and
desirable that the powers are not exercised by one individual, however wise he may be it ill-conforms to the
tenets of democratic rule. When vast powers are exercised by an institution which is accountable to none, it is
politic to entrust its affairs to more hands than one. It helps to assure judiciousness and want of arbitrariness.

After an analysis of the provisions of Art 324, and review of the debates held in the constituent assembly on the
matter at issue, the court laid down the proposition that under art 324(1), the status of the election
commissioners is not paripassu with that of the chief election commissioner. The chief election commissioner
has been given protection so that his conditions of service cannot be varied to his disadvantage after his
appointment, and he cannot be removed from his office except in like manner on like grounds as a judge of
supreme court, where as these are not available to the other election commissioners. Their conditions of service
can be varied even to them dis advantage after their appointment as they can be removed by the
recommendation of chief election commissioner. These provisions indicate that the chief election commissioner
is not primus inter parties, i.e., first among equals, but is indented to be placed in a distinctly higher position
than the other election commissioners.

In this context, thecourt held both thenotifications to be valid. Article 324(2) leaves it to the President to fix and
appoint such number of Election Commissioners as he may from time to time determine. The power to create
the posts is unfettered. So also is the power to reduce or abolish them. If the president decided to abolish both
posts of the Election commissioners eitherbecause there was no work for them, or that the election commission
could not function, there could be nothing wrong with it.

The court stated:

The power to create the posts is unfettered.so is also is the power to reduce or abolish them.

From the tenor of theDhanoadecision, it is clear that the Supreme court has shown preference to the multi-
member election Commission rather than a single member body. The court has also suggested that many rules
to be made to lay down the procedure to transact business of the Commission. The Election commission is not
merely an advisory body but an executive body as well.10

Parliament has enacted the chief election commissioner and other election commissioners Act,1991.This act has
been amended in 1993.this act main aim was to lay down the tenure of the chief election commissioner and
other election commissioners is for 6 years or 65 years whichever comes first and each of them receive a salary
same as a judge of the supreme court.it also provides a solution where if arises any disputes between the

10 Jain, M.P. Indian Constitutional Law, page no.828,Gurgaon : LexisNexis, 2014.

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commissioners regarding matters of the business of the commission then the majority opinion would be
considered.

The act thus places the chief election commissioner and other election commissioners on par with matters of
tenure, salariesetc. But however their position differs in matters of their removal, the chief commissioner can be
removed in same manner and grounds as a supreme court judge, the conditions of the service of the chief are
not be varied to his disadvantage, these two limitations on the power of parliament are designed to protect the
independence of the chief from political and executive interference. On the other hand even the other election
commissioners can be removed only from the recommendation of the chief, in T.N.Seshanv.Union of india,11
The recommendation for removal must be based on intelligible, andcogent considerations which would have
relation to efficient functioning of the commission.

An obligation has been placed on the Central as well as the State Governments to make available to the
Election Commission, or to a Regional Commissioner, when requested by the Election Commission, such staff
as may be necessary for the Election Commission to discharge its functions [Art. 324(6)]. As elections are held
at intervals, therefore, the Election Commission does not employ a large staff on permanent basis. Accordingly,
the Election Commission has been given the power to requisition staff as and when it needs from the Central
and State Governments. Art. 324(6) refers to such staff only as falls under the disciplinary control of these
governments. Therefore, on a request of the Election Commission, the services of such government servants as
are appointed to public services and posts under the Central and State Governments are to be made available for
election purposes. This means that the services of the employees of the State Bank of India, which is a statutory
body, cannot be requisitioned for election purposes.12

APPOINTMENT OF THE ELECTON COMMISSIONERS.

The chief election commissioner and the election commissioners, if any, shall be appointed by the president,
subject to the provisions of any law made by the parliament in their behalf[art324(2)].

A suggestion was made in the constituent assembly that the appointment of the chief election commissioner and
election commissioners should be made subject to confirmation of parliament by two third majority in a joint
session of both the houses of the parliament but this did not favour with the makers of the constitution.

All appointments of the chief election commissioners and other election commissioners have so far been made
by the president.as,under the constitution, the president acts on the aid and advice of the council of ministers
headed by the prime minister, the selection of incumbents to the offices of the chief election commissioner and
election commissioners virtually made by the prime minster in consultation with other members of the council
of ministers.

11 (1995)4 SCC 611 AT 625 :(1995)5 JT 337.

12 Jain, M.P. Indian Constitutional Law, page no.827, Gurgaon : LexisNexis, 2014.
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QUALIFICATION
The constitution does not prescribe any qualifications, academic or otherwise, for appointment to these offices.
However, by convention, only senior civil servants, either serving or retired,of the rank of cabinet secretary or
secretary of to the government of India or of an equal rank have been appointed as the chief election
commissioner and election commissioner so far.In BhagwatiPrasad Dixit Ghorewala v. Rajiv Ghandi13,It was
contented that as the chief election commissioner is placed a par with a judge of the supreme court in the matter
of his removability from office under the constitution , for his appointment also he shouldpossess qualifications
similar to that of a judge of the supreme court .however, the supreme court rejected that contention.14

REGIONAL COMMISSIONER
The President may appoint, after consultation with the Election Commission, such Regional
Commissioners as the President may consider necessary to assist the Election Commission in the discharge of
its functions. The Regional Commissioners may be appointed before each general election to the Lok Sabha and
the State Legislative Assemblies, and also before the biennial election to the State Legislative Councils [Art.
324(4)]. As the Regional Commissioners [RCs] are appointed by the President in consultation with the
Commission to assist it to perform its functions, the ECs are placed on a higher pedestal than the RCs. While
the ECs are members of the Election Commission, the RCs are not its members. The President may make rules
to determine the conditions of service and tenure of office of the Election Commissioners and the Regional
Commissioners. This, however, is subject to any law made by Parliament [Art. 324(5)].

The tenure of other Election Commissioners and the Regional Commissioners is also free of the
executive control in so far as none of them can be removed from office except on the recommendation of the
Chief Election Commissioner Art. 324(5)

So far, only at time of the first general elections o the house of people and state legislative assemblies in 1951-
52, two regional commissioners were appointed. In fact, four posts of regional commissioners were sanctioned
by the president on 8 August 1951, but only two of them were filled by appointing Shri TGN Iyer, an officer of
Indian civil service, with effect from 31st October 1951 and a retired officer of Indian civil service Shri MR
Meher, with effect from 1st November 1951.they held their posts up to 1st April 1952. thereafter no regional
commissioner was ever appointed, on the 8th general election of the house of the people, a proposal was
mooted but the same was dropped at the last minute.

13 AIR 1986 SC 1534.

14Mendirata, S.K. How India Votes,Page no : 180,Gurgaon: LexisNexis, 2014. Print

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CONDITIONS OF SERVICE OF THE ELECTION

CIOMMISIONERS
The conditions of service of the chief election commissioner and other election commissioners and heir tenure
of office shall be regulated by the parliament by law. However, in the absence of such law, the president shall
determine by rule all such matters[art324(5)].

However, the above are subject to certain important limitations in that the chief election commissioner shall not
be removed from his office except in like manner and on like grounds as a judge of the supreme and further, his
condition of service shall not be varied to his disadvantage after his appointment. Furthermore, no election
commissioner shall be removed from office except on the recommendation of the chief election commissioner.

There is no bar either under the constitution or under any law to reappointment of the chief election
commissioner and other election commissioners(subject to the upper age limit of sixty five years),or to their
further employment under government, on ceasing to hold their office .By the above referred constitution
(seventieth Amendment) bill 1990,they were sought to be made ineligible for any further employment under the
government, and even for appointment as governor or lieutenant governor of a state or a union territory; but that
bill was withdrawn.

SECRETARIAT
Secretariat of electioncommission is headquartered at New Delhi. It consists of about 300 officers and staff at
levels of deputy election commissioner, director general, directors, principal secretaries,secretaries, under-
secretaries,section officers, assistants,clerks, etc. Their service conditions were regulated by rules made by the
President under art 309,like the service rules of other officers and staff employed in various ministers and
departments of the government of India in connection with the affairs of the union. The work of the commission
is distributedamongtheseofficers and staff both on functional and regional basis there are some officers and
sections dealing with policies, planning, judicial and administrative matters, information systems on all
Indiabasis, whereas others deal with the election work relating to specified states and union territories under
their charge. Officers at the level of deputy election commissioners, directorgeneral, anddirectors are generally
appointed under deputation from the national civil services on tenure basis, whereas the officers at the lower
levels are permanent officers in the Commissions secretariat from its own ranks

For autonomy and independent functioning of the election commission, the Goswami committee on Electoral
reforms recommended in 1990, So that they would be independent in matters of appointment, promotions and
other conditions of service of its officers at various levels. The constitution (Seventieth Amendment) bill 1990
was introduced sought to give effect to the recommendation. However, the government withdrew the bill in
1993, as it felt that the bill needed some amendments in the view of the changed composition of the
commission on having become a multi member body.
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EXPENSES
The administrative expenditure of the Election commission is a voted expenditure but not a charge on the
consolidated fund of India. There was a proposal to the Goswami committee in 1990 for the charge on the
consolidates fund of India like other constitutional authorities like Union Public Service Commission and
Controller and Auditor-General of India, this was accepted by the committee, but later he government accepted
the proposal and introduced the bill titled Election Commission(Charging of Expenses on the Consolidated
Fund of India)Bill 1994in the house of people, but it didnt pass as it got lapsed on the dissolution of that
government in 1996.The commission though after many proposals from time to time is still a voted
expenditure.

NATURE &SCOPE OF ELECTION COMMISSION POWERS

The Election Commission plays a pivotal role in the electoral mechanism of the country. The Election
Commission primarily exercises administrative functions but it also has some adjudicative and legislative
functions as well. Art. 324(1) assigns the following functions to the Election Commission:

(1) The superintendence, direction and control of the preparation of the electoral rolls for all elections to
Parliament, State Legislatures, offices of the President and Vice-President;

(2) Conduct of all these elections. The powers of the Commission flow from Art. 324. The superintendence,
direction and control of the entire electoral process in the country is vested in the Election Commission. The
words superintendence, direction and control are of wide amplitude. These words are enough to include all
powers necessary for the smooth and effective conduct of elections so that the will of the people may be
expressed.15

The term election in Art. 324 has been used in a wide sense so as to include the entire process of election
which consists of several stages and it embraces many steps, some of which may have an important bearing on
the result of the process.

The amplitude of powers and width of the functions of The Election commission under art324 came to be
considered by the Supreme court in Mohinder Singh Gill and Anor v. Chief Election Commissioner and Ors16.In
this case the election commission had declares the poll taken in Firozepur parliamentary constituency in the
State of Punjab at the time of 1977-general election to the House of people to be void, on the basis of certain
complaints. The petitioners contented that the election commission cannot conduct fresh poll on whole of the
constituencyy but only in the polls which were allegedly vitiated.

15Election Commission of India v. Ashok Kumar, (2000) 8 SCC 216 : AIR 2000 SC 2979; Lalji Shukla v. Election
Commission, AIR 2002 All 73.

16 AIR 1978 SC 851 : (1978) 1 SCC 405.

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The Supreme Court has ruled that the Commission should exercise its power of cancelling a poll according to
the principles of natural justice. The Election Commission has power to review its decision as to the expediency
of holding the poll on a particular date17.

The Supreme court held that under the art 324 The responsibility of superintendence, direction and controlling
the conduct of elections may cover powers, duties and functions of many sorts dependingupon the
circumstances. The limitations are, any law passed by the parliament in connection with elections they have act
in par with it and the commission shall be responsible to the rule of law, act of bonafide and be amenable to the
norms of Natural justice in so far as non-conformance to such canons can reasonably and realistically be
required of it as fair play-in-action in a most important area of the constitutional order, namely elections.18

In May, 1982, during the elections for the Kerala State Legislative Assembly, electronic voting system was
introduced at some polling booths in one constituency. This was done under the directions of the Election
Commission issued under Art. 324. After the completion of the election, the validity of the electronic voting
system was challenged through an election petition. In Jose39, the Supreme Court setting aside the election of
the successful candidate, ordered re-poll in such polling booths where the machines had been used. The Court
ruled that the order of the Commission directing the casting of ballots by machines was without jurisdiction.
The Election Commission could not change the voting system as this matter fell within the domain of
Parliament. The Court interpreted the word ballot used in the Representation of the People Act as not
including the casting of votes by any mechanical process. The Court construed Art. 324 as conferring only
executive, but not legislative, powers on the Election Commission. Legislative powers in respect of elections to
Parliament and the State Legislatures vest in Parliament and no other body and the Election Commission would
come into picture only if no provision has been made by Parliament in regard to these elections. The Court
disagreed with the contention that the Constitution gives complete power to the Commission under Art. 324 for
the conduct of elections. The Constitution could never have intended to make the Commission as an apex body
in respect of matters relating to the elections and conferring on it legislative powers ignoring Parliament
altogether.

The Supreme Court laid down the following propositions as regards the power of the Commission under Art.
324:

(1) When there is no law or rule made under the law, the Commission may pass any order in respect of the
conduct of elections.

(2) When there is an Act and rules made thereunder, it is not open to the Commission to override the same and
pass orders in direct disobedience to the mandate contained in the rules or the Act. This means that the powers

17Mohd. YunusSaleem v. Shiv Kumar Shastri, AIR 1974 SC 1218.

18Election Commission v. State of Haryana, AIR 1984 SC 1406.

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of the Commission are meant to supplement, rather than supplant, the law and the rules in the matter of
superintendence, direction and control provided by Art. 324. (3) Where the law or the rules are silent, the
Commission no doubt has plenary powers under Art. 324 to give any direction in respect of the conduct of
elections. (4) In the absence of any specific provision to meet a contingency, the Election Commission can
invoke its plenary power under Art. 324.40 But when the Commission submits a particular direction to the
Government for approval (as required by the rules), it is not open to the Commission to go ahead with the
implementation of that direction at its own sweet will, even though government approval is not given. Rule
5(1) of the Rules made by the Central Government under the Representation of the People Act, 1951 (RPA),
empowers the Election Commission to specify the symbols which candidates for election may specify. Other
rules make provisions for allotment of symbols to the candidates. The Election Commission has issued the
Symbols Order, 1968, under Art. 324 read with these Rules. The validity of this order has been challenged from
time to time on the ground inter alia that the Order being legislative in character is ultra vires the Commission
because the Commission has executive, but not legislative power under Art. 324. The Supreme Court has
always upheld the validity of the Order.41

The nature and scope of the powers and functions of the election commission also came to be considered by the
supreme Court in Kanhiya Lal Omar v. RK Trivedi and Ors19.In this case, the validity of the election
symbols(reservation and allotment) order 1968, promulgated by the Election commission providing for the
recognition of political parties as national and state parties, determination of disputes between the splinter group
of such recognised political parties, allotment of symbols to candidates to candidates was called in question. It
was contented that the symbols Order was legislative in character and could not have been promulgated by the
commission, as the commission is not empowered by law to issue such a legislative order .The supreme court
rejected the above contention, holding that the power to issue the symbols order is comprehended in the
powers of superintendence, control and direction of elections vested in the Commission under art 324.If any of
the provisions in the symbols order could not be traced to the representation of People Act 1951,or the conduct
of elections rules 1961, it could easily be traced to the reservoir of power under the art 324(1),which empowers
the commission to issue all directions necessary for the purpose of conducting smooth, fair and free elections.

In Common cause v. Union of India and ors20, the supreme court held that the expression conduct of election
in art 324 of the Constitution is wide enough to include in is sweep, the power of election commission to issue
in the process of the conduct of elections-direction to the effect that the political parties shall submit to the
commission for its scrutiny, the details of the expenditure incurred or authorised by the political parties in
connection with the election of their perspective candidates.

191986 AIR 111.

20 AIR 1996 SC 3081.

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Summing up the amplitude of powers of the Election Commission under art324, he supreme Court held in
Union of India v. Association for Democratic Reforms and ors21.

1)The jurisdiction of the election commission is wide enough to include all powers necessary for
smoothconduct of elections and the word elections is used in a wide sense to include the entire process of
election which consists of several stages and embraces many steps.

2)The limitation on plenary character of power is when parliament or state Legislature has made a valid law
relating or in connection with elections, the commission is required to act in conformity with the said
provisions. Constitution has taken care of leaving scope for exercise of residuary power by the commission in
its own right as a creature of the constitution in the infinite variety of situations that may emerge from time to
time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the
rules .by issuing necessary direction, Commission can fill the vacuum till there is legislation on the subject.

In Kanhiya Lal Omars case22,The Court constructed the expressions superintendence, direction and control in
art 324(1) and held that a direction may mean an order issued to a particular individual or precept which may
have to follow and it may be a specific or a general order and such phrase should be constructed liberally
empowering the election commission to issue such orders.

ELECTION COMMISSION AS A TRIBUNAL

Under Art. 324, read with the Election Symbols (Reservation and Allotment) Order, 1968, the Election
Commission has power to allot symbols for purposes of elections to political parties and to adjudicate upon
disputes with regard to recognition of political parties and rival claims to a particular symbol for purposes of
elections. The character of the Commission while adjudicating upon the dispute with regard to the recognition
of a political party is questioned. Is the Election Commission a tribunal under Art. 136 while adjudicating
upon such a dispute and can the Supreme Court hear an appeal from the Commissions decision? In several
cases before 1974, the Supreme Court had heard appeals from the Election Commission without however
deciding the question whether the Election Commission could be regarded as a tribunal for purposes of Art.
136 in so far as it discharged adjudicatory functions. The Supreme Court had left this question open in these
cases.23

However in A.P.H.L Conference, Shillong, v. W.A. Sangma,24 the Supreme Court held that the Commission is a
tribunal for purposes of Art. 136 while deciding such a controversy. The power to decide this particular dispute

21 AIR 2002 SC 2112.

22 1986 AIR SC 111.

23Sadikali v. Election commission, AIR 1972 SC 187.

24 AIR 1977 SC 2155

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is a part of the States judicial power and that power is conferred on the Election Commission by Art. 324 of the
Constitution as also by R. 5 of the Rules.

Cancellation of an allotted symbol to a political party is a quasi-judicial matter and the affected party must be
given a hearing before making any such order.25Similarly, while deciding the question of supervening
disqualification of a sitting member of a House of Parliament, or of a State Legislature, the Commission acts in
a quasi-judicial capacity.26 The Election Commission has various administrative functions, but that does not
mean that, while adjudicating a dispute, it does not exercise the judicial power conferred on it by the state. The
Commission is created by the Constitution and is invested under the law with not only administrative powers,
but also with certain judicial powers however fractional the same may be.27

JUDICIAL REVIEW
However, wide may be the powers conferred b Art.324(1),they are subject to judicial review 28

The high court under art 22629,can therefore, interfere with an order of the election commission

Where it is contrary to law enacted under Art 327.30

If he orders is arbitrary or malafide or unfair.

25Uma ballavRathv.MaheshwaeMohanty, AIR 1999 SC 1322.

26Election Commission of India v. Subramanian Swamy, AIR 1996 SC 1810.

27 Jain, M.P. Indian Constitutional Law, page no.834-835, Gurgaon : LexisNexis, 2014.

28Yadav Reddy v. Election commission.

29 Article 226:Power of High Courts to issue certain writs(1) Notwithstanding anything in Article 32 every High Court shall have
powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in
appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and
for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be
exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is
not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in
any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and
furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High
Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the
copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the
expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall,
on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by
clause ( 2 ) of Article 32

30Digvijay Mote v. union of India, (1993) 4 SCC 175.

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If it is without or in excess of the commissions jurisdiction being in contravention of any electoral law
or the rules made there under 31by the competent Legislature or any provision of the constitution itself
Where a particular direction of the commission is submitted to the government for approval as required
by the Rules, it is not open to the commission to go ahead with the implementation of it as its own sweet
will even if the approval of the government is not given32

But the jurisdiction of courts would not extended to issuing directions to the Election Commission for the
conduct of particular polls on particular dates independently of the perception of the commission as to their
feasibility and practicability consistent with the requirement of the purity of the electoral process33

The duty of the election commission is to conduct fresh election and see that a democratically elected
government is installed at the earliest and any decision by the election commission,which is intended to defeat
this avowed object of forming an elected government can certainly be challenged before he court it the decision
taken by the commission is perverse,unreasonable or for extraneous reasons and if the decision of the
commission is vitiated by any of these grounds the court can give appropriate direction for the conduct of the
election34

ELECTORAL MACHINERY
Apart from the secretariat at New Delhi, the election commission has no independent electoral machinery in the
field. The commission undertakes the preparation and revision of electoral rolls and conducts elections of
parliament and state legislature with the help of the administrative machinery of the state governments.

The President, or the governor of a state under Art 324(6) shall, when so requested by Election commission
make available to the election commission or to a regional commissioner such staff as may be necessary for the
discharge of the functions conferred on the election commission by clause (1).

In Janaki Sharan Prasad v. State of Bihar Officers from Bihar were appointed for election duty in Assam, the
petitioner contented that Governor of Bihar could not place their services at disposal of the commission for
duties outside Bihar. The Patna High Court did not accept their contention and they had to perform election
duties in Assam.

31 AIR 1952 SC 64.

32A.C Jose v Sivan Pillai, AIR 1984 SC 921.

33Election commission of India v Union of India, 1995 Supp(3) SCC 643

34 AIR 2003 SC 87.

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Chief Electoral Officers

The electoral machinery in each state and union territory is headed by a chief electoral officer. They are usually
senior officers of state government.

They have separate office at the state level manned by certain officers variously known as additional chief
electoral officers, joint chief electoral officers, deputy chief electoral officers and assistant chief electoral
officers.

District election officers

The Election Commission feels35that from purely electoral point of view, a parliamentary constituency would be
ideal territorial unit for making efficient electoral arrangements.But,since the district is the unit for various
administrative purposes in each state, electoral arrangements also have been based on the district and its
revenue sub divisions. From the beginning each district was supervised by the head of the district
administration.

Electoral Registration officers

For the preparation and revision of electoral rolls, there shall be an officer called the electoral registration
officer. Normally,he heads of the revenue sub-divisions are appointed as electoral registration officers.

Assistant electoral Registration officers

The commission may appoint subordinates of the heads of the revenue sub-division to perform the duties under
them there are booth level officers, booth level assistants.

Returning officer

The king pin for the conduct of any election is the returning officer, officers are designated or nominated in
consultation with the Government of that state, under them they have assistant returning officer,polling
officers,counting supervisors and counting assistants and observers.

The constitution makers intendedthat the machinery should be in control of the commission.

Disciplinary functions of the commission over the machinery

The disciplinary functions of the commission over the machinery

1. Suspending any officer/police personnel for insubordination or dereliction of duty;

2. Substituting any officer/official/police personnel by another such person
3. Making recommendation to the componentauthority for taking action against insubordination or
dereliction of duty.

35State of West Bengal v. Election commission of India and Ors.

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CONCLUSION
The Right to vote, in democracy like India can function only if the people get to exercise their rights, for the
people to exercise the right to vote there should be free and fair elections, this duty was entrusted by the
constitution of Indiato the election commission, a constitutional body which superintends, controls and
direction to conduct elections, its duty includes all works related to elections. This fundamental consideration
hasguided the courts in deciding cases in relation to the Commission, so under all circumstances ensured that it
is able to function independently of all kinds of extraneous influences.

The Constituent Assembly is definitely the best possible course that could have been taken in the
light of the circumstances and choices available to it. The present Election Commission is a basic skeletal
machinery for conducting elections, present at all points of time. In addition, more members may be appointed
whenever there is an increased requirement. The appointment of ECs has to be warranted by requirements.
There has to be an increased work burden that can be handled only by the ECs so as to warrant their
appointment.

The desirability of a multi-member Commission is supported by judicial decision, settled democratic principles
and human prudence. At the same time, there have to be procedural rules that specify the kind of relationship
that shall bind the members of such a body. Presently, the relevant statutes and judicial decisions lay down that
the business should be transacted in a unanimous manner as far as possible. If there is no unanimity on issues,
the rule of majority shall apply. But the latter is equally important since when the functions involve taking
decisions, there may not be a unanimous opinion at all times.

The CEC is in no way superior as compared to the ECs. They are all equally placed in so far as their powers
and functions are concerned. This legal position appears to be perfectly sound, since it ensures that the ECs who
are appointed are not just advisors, but can exercise authority. The CEC is no more than a first among equals.

The relationship between the CEC and ECs is largely similar to that of the Chief Justice and judges. The
former is not in a position to influence the latter in the course of discharging their functions. The judges of the
Supreme Court and High Courts can sit in benches, thus showing that the presence of the Chief Justice is not
necessary in all the decisions of the court. Similarly, the Commission may also sit in benches, with the
participation of the CEC not a must in all the decisions of the Commission.

The Chairman in a multi-member body is not more than a functionary representing the body. Even if he alone
takes all the decisions, the decisions shall be those of the Commission and not his own. He can never be higher
than the institution he is meant to serve since he shall exist only so long as that institution does. His role is to
preside over the proceedings of the body, ensuring that its business is conducted in a smooth manner. In any
such body, the other members shall be able to act independently only if they are placed at par and not
subordinate to him.
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The commissioners are appointed by President with advice of the majority run partys
council of ministers and the prime minister, the appointment can be said that it is influenced but the powers of
the commissioner after appointment is independent, the commission can function without any outside influence
as it has nothing fear about if it works without any mala fide intention.

BIBLOGRAPHY:
PRIMARY

Constitution of India, 1950.

Article 324, Constitution of India,1950
A.C Jose v. Sivan Pillai, AIR 1984 SC 921
Election commission of India v. Union of India, 1995 Supp(3) SCC 643
Uma ballavRath v. MaheshwaeMohanty, AIR 1999 SC 1322.
Election Commission of India v. Subramanian Swamy, AIR 1996 SC 1810.
Sadikali v. Election commission, AIR 1972 SC 187.
Shillong, v. W.A. Sangma ,AIR 1977 SC 2155.
Union of India v. Association for Democratic Reforms and ors, AIR 2002 SC 2112.
Common cause v. Union of India and ors, AIR 1996 SC 3081.
Kanhiya Lal Omar v. RK Trivedi and Ors,1986 AIR 111.
Mohd. YunusSaleem v. Shiv Kumar Shastri, AIR 1974 SC 1218.
Election Commission v. State of Haryana, AIR 1984 SC 1406.
Election Commission of India v. Ashok Kumar, AIR 2000 SC 2979
Lalji Shukla v. Election Commission, AIR 2002 All 73.
Mohinder Singh Gill and Anor v. Chief Election Commissioner and Ors,AIR 1978 SC 851.
Election Commission of India v. State Bank of India, Staff Assn., AIR 1995 SC 1078.
Bhagwati Prasad Dixit Ghorewala v. Rajiv Ghandi, AIR 1986 SC 1534.
T.N.Seshanv.Union of india, (1995)4 SCC 611 AT 625 :(1995)5 JT 337.
S.SDhanoav.Union of India, AIR 1991 SC 1745 :(1991) 3 SCC 567.
Kesavanandbharathi v. state of kerala, AIR 1973 SC1461.
Mohindersingh gill v. chief election commr, AIR1978 SC 851
In KihotoHollohan v. Zachillhu and Ors ,AIR 1993 SC 412.
NP Ponnuswami v. Returning Officer,Namakkal, AIR 1952 SC 64.
Union of civil liberties v. Union of India ,2009(2) SCJ 875.
Peoples Union of civil liberties (PUCS) v. Union of India, AIR 2003 SC 2363
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SECONDARY
Jain, M.P. Indian Constitutional Law. Gurgaon : LexisNexis, 2014. Print

Pandey, J.N. Constitutional Law of India. Allahabad: Central Law Agency, 2014.Print

Shukla, V.N. Constitution of India. Lucknow: Eastern Book Company, 2013. Print

Basu, DD. Shorter Constitution of India, Volume 2. Gurgaon: LexisNexis, 2014. Print

Seervai, H.M. Constitutional Law of India, Volume 3. New Delhi: Universal Law Publishing
Company,2014.Print

Mendirata, S.K. How India Votes.Gurgaon: LexisNexis, 2014. Print

ARTICLES

Election Commission and Changing Contours of Politics

Author(s): ManjariKatju

Source: Economic and Political Weekly, Vol. 44, No. 16 (Apr. 18 - 24, 2009), pp. 8-12

Published by: Economic and Political Weekly.

WEBLIOGRAPHY

www.jstor.org

www.heinonline.org

https://scholar.google.co.in/

www.importantindia.com

www.yourarticlelibrary.com

Eci.nic.in
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