NATIONAL LAW INSTITUTE UNIVERSITY

XIV TRIMESTER

LAW OF ELECTIONS PROJECT

ON:

CRITICAL STUDY OF THE POSITION OF THE CHIEF ELECTION

COMMISIONER AND OTHER ELECTION COMMISSIONERS

ACADEMIC YEAR 2018-19

Submitted to: Submitted by:

Dr. V. Vijaykumar Himanshu Singh

(2014BALLB65)
 ACKNOWLEDGEMENT

I would take great pleasure in thanking my Environment Law professor, Dr. V. Vijaykumar,
for his infallible support all through the course of this project. This endeavor would not have
been in its present shape had he not been there whenever I needed him. He has been a constant
source of support all the while.

Also, I would like to extend my sincere thanks to the library staff for always helping me out
with finding excellent books and material almost every time I needed. They too have been a
constant support system in the completion of this project.

Last but surely not the least- I would like to thank my friends for their timely critical analysis
of my work and special feedback that worked towards the betterment of this work.

HIMANSHU SINGH
 CONTENTS
INTRODUCTION ................................................................................................ 4

ELECTIONS AND DEMOCRACY .................................................................... 5

ELECTION: WHAT IT MEANS ......................................................................... 6

ELECTION COMMISSION: GENESIS .............................................................. 7

THE SETUP OF ELECTION COMMISSION IN INDIA................................... 9

MULTI MEMBER ELECTION COMMISSION .............................................. 10

CONCLUSION ................................................................................................... 12

BIBLIOGRAPHY ............................................................................................... 13
 INTRODUCTION

India is a Democratic, Republic as declared by the Preamble to the Constitution. The

citizens who have the protection and upholding of the civil rights in mind are concerned with
the democracy and politics of the country. In the judgment in the case of Indira Nehru Gandhi
v Raj Narayan1 ‘Democracy’ was held as a basic features of the constitution.

It is through elections a modern state creates among its natives a feeling of association
and interest in open undertakings or public affairs. It is through popular elections that the
authority of a legislature is legitimised, and exchange of power to new leaders is guaranteed.
A good appointive framework is, along these lines, the bed rock of authentic representative
government. The absence of general trust in the decision of the polling booth may devastate
the confidence of people in general in the vote based procedure. Focusing on the significance
of appointive organization, Pollock observed, “unless public elections are conducted with
accuracy and efficiency, not only the public services are discredited but the whole democratic
system is endangered”.

1
AIR 1975 SC 2299
 ELECTIONS AND DEMOCRACY

Popular government lays on the will of the 'demos'. These wills are showed all
the more viably when agents of the general population are chosen. In a representative kind of
vote based system, wills of the demos are briefly exchanged to their agents for a particular
timeframe, with the assent of the demos. Montesquieu wrote in 1748 that since it was
unrealistic in an expansive state for the general population to meet as an authoritative body,
they should pick agents to do what they couldn't do themselves. The agents (to whom control
is to be exchanged) are chosen by holding regular elections. A democratic political framework
must acknowledge no other expert than the desire of the general population and their
uninhibitedly given assent as the premise of administration. It is this freely given assent on
specific interims through decisions that legitimizes the political framework. Present day
delegate majority rule government, in this way, would not be conceivable without periodic
elections. In fact, the general thought of agent framework can't be imagined without normal
elections.
 ELECTION: WHAT IT MEANS

As indicated by Webster's dictionary "election" signifies the demonstration or

procedure of picking an individual for an office, position or participation by voting.

As indicated by Representation of the People Act 1951, "election" is characterized as an

implication of a decision to fill a seat or seats in either House of Parliament or in the House or
either House of the Legislature of the State.

The word election suggests the individuals who are to choose, called the "elecctors", the
workplace to which decision is to be made, and the individual who to be chosen is called the
“candidate”.

Election is a process. The word election has been used in Part XV of the constitution in
a wide sense that is to state to mean the whole system to be experienced to restore a possibility
to the governing body. The word election can be understood to encapsulate all the phases and
means of electing a representative of the people. If it were to be said that election merely relates
to the casting of ballot and nothing else it would be ignorant whereas the conduct of election
relates to all the activities done by the election commission in anticipation of the elections in
order to elect a representative of the citizens such as verification of candidates’ credentials,
allotment of election symbols, etc. A wide range must be secured before election can really
happen.2 The word election covers all aspects of the procedure. It is in this wide sense the word
is utilized in Part XV of the constitution as iterarted in Election Commission of India v.
Shivaji.3

2
Election: Law and Practice, DD Chawla, page 5
3
AIR 1988 SC 61
 ELECTION COMMISSION: GENESIS

The draftsmen of the constitution made provisions for the conduct of free anf fair
elections and were also mindful of importance of establishing an independent body for the
same. They tried to explain the procedure in the most extensive manner and relied emphasis on
the importance of an independent authority to conduct elections to maintain the integrity of
democracy in our country.

The Fundamental Right Sub Committee collectively endorsed that freedom of decisions
and evasion of obstruction by the officials in legislative elections ought to be viewed as a
Fundamental Right and be incorporated into the chapter managing the subject. The advisory
group settled;4 on using the system of Universal adult franchise which enables any individual
above the age of 18 years to exercise his right to vote and elect a representative: election must
be conducted in a secretive manner in order to respect the voters’ right to privacy and the state
must also facilitate the conduct of elections by aiding the election commission in setting up
booths and providing transport facilities, etc; and lastly that the election had to be supervised
or overseen by an independent autonomous commission at the central level

The committee concurred on a fundamental level with the substance of the condition
yet felt that as opposed to being incorporated into the rundown of basic rights, it should
discover a spot in some piece of the constitution. The recommendations of the advisory
committee were approved by the union constitutional panel and accordingly incorporated in
the constitution.

Talking in the constituent Assembly, Rajendra Prasad expressed his apprehensions

regarding the corruption which the parties may practice in order to rig the elections and
therefore appropriate provisions must be made and steps must be taken in this regard and
organize free and fair elections.

A perusing of the important provisions of the constitution relating to elections we find

that the powers to make provisions with respect to election to the parliament or the state
legislature are vested with the parliament and the state legislatures respectively under the
articles 327 and 328 of the constitution "subject to the provisions of the constitution".

4
The Framing of India’s Constitution: A Study, Shiva Rao, page 460
 With respect to organization of Election commission, there were two unique
proposition before the drafting advisory committee:

i. Either to have a lasting assemblage of four or five individuals or

ii. Ad hoc body established at the season of pinnacle constituent movement.

The drafting advisory committee took a middle course. It chose to have forever in office
one man, specifically, the Chief Election Commissioner who surrounded the perpetual core for
sorting out and leading bye decisions and to organize general elections. The skeleton hardware
of the workplace of the Chief Election Commissioner was to be enlarged by substantial
fortifications, which could be favored for constituent obligations from other work at the season
of general elections to Union and State Legislatures including the arrangement of Regional
Commissioners.
 THE SETUP OF ELECTION COMMISSION IN INDIA

The Commission has a different Secretariat at New Delhi, comprising of around 300
officials, in a progressive set up.

A few Deputy Election Commissioners and Director Generals who are the senior most
officers in the Secretariat help the Commission. They are commonly named from the national
common administration of the nation and are chosen and named by the Commission with
residency. Executives, Principal Secretaries, and Secretaries, Under Secretaries and Deputy
Directors bolster the Deputy Election Commissioners and Director Generals thusly. There is
practical and regional dispersion of work in the Commission. The work is sorted out in
Divisions, Branches and areas; every one of the last referenced units is accountable for a
Section Officer. The primary useful divisions are Planning, Judicial, Administration,
Systematic Voters' Education and Electoral Participation, SVEEP, Information Systems,
Media and Secretariat Co-appointment. The regional work is disseminated among discrete
units in charge of various Zones into which the 35 constituent States and Union Territories of
the nation are gathered for accommodation of the board.

State level election work is supervised by the chief election officer of the state proposed by the
concerned state. He is a full time officer of the state and is supported by some staff.

At the locale and voting demographic dimensions, the District Election Officers, Electoral
Registration Officers and Returning Officers, who are helped by an extensive number of junior
functionaries, perform elesction work. They all play out their capacities identifying with
decisions notwithstanding their different duties. Amid election time, be that as it may, they are
accessible to the Commission.

To conduct a general election across the nation requires a humongous team with surveyers and
policemen for the safe conduct of elections and also to prevent corrupt practices in the said
election. The entire election process is supervised by the election commission and it takes
around one and a half to two months.
 MULTI MEMBER ELECTION COMMISSION

The election commission is entrusted with a vital duty and function of conducting elections
which decide the fate of the country and the course it’s going to take for the next five years.
Therefore, it is only prudent to not give this entire power or responsibility or function in a
single man’s hand but to give it to a group instead. A single man may be more prone to sway
than a group. And in accordance with the above thought we have an election commission whose
number of members can be increased or decreased by the President of India accordingly which
means that there is a possibility of a multi member election commission.

In the SS Dhanoa case,5 the Supreme Court decided that the president was excercising his
power under Article 324(2) under which he can reduce or increase the size of the commission
from time to time when he annulled the positions of two election commissioners while the
appelants argued that the abolition of their posts was to be done on the recommendation of the
Chief election commissioner only as provided in Article 324(5) of the constitution of India.

While drafting the constitution the drafters did consider the possibility that it would not be
possible that the election commission reached a unanimous decision regarding all matters of
election but still they pursued the idea of a multi member commission which means that they
gave the authority of deciding matters by majority vote instead of giving such power to the
chief election commissioner to decide such matters. This reasoning was reiterated in the
judicial decision in the case of T N Seshan vs Union of India. Another reasoning which can be
given to argue the equality of the election commissioner and the application of majority vote
system in deciding matters is that the removal of the chief election commissioner is to be done
as a removal of a Supreme Court judge as provided in the constitution of India. They are also
meant to sit in benches and decide matters.

In Election Commission of India v. Dr. Subramaniam Swamy6, it was held that the requirement
of chief election commissioner’s decision on every aspect or matter was not necessary. In this
case the legitimacy of the election of Ms. J Jayalalitha to the legislature on the ground that she
was a partner in a firm involved with government contracts warranting disqualification under
Representative of People Act, 1951. This is another instance where the election commission is
compared with the Judiciary of higher level where we see that the Judges of the Supreme Court

5
AIR 1991 SC 1745
6
AIR 1996 SC 1810
do not have to always take counsel of the Chief Justice of the Supreme Court just like the chief
election commissioner and other election commissioners.

Therefore, it has been established that the CEC and other election commissioners are at the
same level. It has been affirmed by the judiciary that the Chief Election Commissioner is not
at a higher pedestal but at the same pedestal. The CEC is equal to other election commissioners
and he is merely the chairman of the election commission.
 CONCLUSION

India being a Democratic state, it is essential to ensure a free and fair election process
to ensure that the fundamental behind a representative type of government which is to elect the
representative of the people fairly. For this, the election commission was established under the
constitution of India as an independent and autonomous body to function without any external
influences.

The Constituent Assembly adopted the best course by establishing an Election

Commission as a permanent body to conduct elections with the option to expand such
commission as need be. The Election Commission is set up as a permanent body to look after
and supervise other regional elections and other elections on all levels instead of an ad hoc
commission to be set up as the elections neared. A permanent commission also gives the
advantage to the commissioners of gaining experience in the conduct of elections and to
improve the system by adopting progressive policies, etc.

The desirability of a multi member commission is supported by judicial decisions,

settled democratic principles and human prudence. The mode of how the business is to be
conducted is provided to be in the unanimous manner and in case of divergence by way of rule
of majority thereby putting both the chief election commissioner and other election
commissioners at the same pedestal. The CEC is in no way considered superior than other
election commissioners, as of things stand today in light of the judicial decision in T N Seshan
vs Union of India. The election commissioners are not only advisors to the chief election
commissioner but are vested with powers and functions and can exercise such authority. The
Chief election Commissioner is merely first among equals therefore, the independence of the
Commission is ensured. Again it is the same relationship between the chief election
commissioner and the election commissioner is the same a the chief justice of Supreme Court
and other Judges of the Supreme Court in the way how the matters are to be decided.
 BIBLIOGRAPHY

Websites

https://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=bb6f0da9-b69d-4d23-8819-
494892a796cb&txtsearch=Subject:%20Constitution

https://www.legalcrystal.com/case/664884/t-n-seshan-chief-election-commissioner-vs-union-india

Indian Kanoon

Manupatra

Books

Constitutional Law of India: A critical Commentary, By HM Seervai.

Indian Constitutional Law, By MP Jain and Jasti Chelameshwar.