The story so far: The run-up to the 2019 general election has seen several violations of the Model Code of Conduct. The Election Commission of India (EC) admitted to the Supreme Court that it was “toothless”, and did not have enough powers to deal with inflammatory or divisive speeches in the election campaign. On April 16, it imposed campaign bans, ranging from two to three days, on some political leaders, including Bahujan Samaj Party supremo Mayawati and Uttar Pradesh Chief Minister Yogi Adityanath. On Friday, April 19, the EC put a 48-hour ban on Himachal Pradesh Bharatiya Janata Party president Satpal Singh Satti for his derogatory remarks against Congress president Rahul Gandhi. What exactly are the EC’s powers to ensure a free and fair election?
From where does the EC derive its powers and what is its extent?
The Election Commission of India is a creation of the Constitution. Article 324 says the superintendence, direction and control of all elections to Parliament, the State legislatures, and the offices of the President and Vice-President shall be vested in the EC. The Article has been interpreted by courts and by orders of the EC from time to time to mean that the power vested in it is plenary in nature. It is seen as unlimited and unconditional in the matter of holding elections. In other words, the EC can take any action it deems fit to ensure that elections and the election process are free and fair.
The independence of the EC is preserved by clauses in the Constitution that say the Chief Election Commissioner cannot be removed from office except in the manner provided for the removal of a Supreme Court judge and that the conditions of his service cannot be varied to the incumbent’s disadvantage after appointment.
Has the EC always been a multi-member body?
No, the Election Commission was helmed by a single Chief Election Commissioner for decades since the body was set up in 1950 based on the provisions of the Constitution. It was on October 16, 1989, that two more Election Commissioners were appointed to expand the panel’s composition. Their tenure ended in 1990. Thereafter, two Election Commissioners were appointed in 1993. Since then, the EC has been a three-member panel, with a Chief Election Commissioner and two Election Commissioners. Decision-making within the panel is by majority. While the CEC can only be removed in the manner set out for a Supreme Court judge, the other two Commissioners may be removed on the recommendation of the CEC. In 1995, the Supreme Court held that the Election Commissioners are on a par with the CEC and the latter is not superior in standing with the other Commissioners. The EC has been demanding that the protection and safeguards given to the CEC under the Constitution should also be extended to the other Election Commissioners.
What kind of control does the EC have over civil servants during an election?
As the superintendence and control over all aspects of the election process is vested in the EC, it exercises direction and control over civil servants deployed for election-related work. This means that bureaucrats engaged in the administrative aspects of elections, including police officers with law and order duties, are also amenable to the EC’s jurisdiction. This power enables the EC to monitor both the manner in which civil servants perform their election-related duties, and prevent activities which may be seen as partisan. The EC often cites its vast powers under Article 324 to transfer or suspend officials during election time, even though they normally come under the disciplinary purview of the government of India or the State governments. There have been instances of the EC transferring not only Returning Officers, but also Commissioners of Police and Superintendents of Police. On April 5, the EC transferred Kolkata Police Commissioner Anuj Sharma and three other top police officers. The normal reasons cited are to prevent these civil servants from aiding any political party and to ensure a level-playing field for all contestants.
What are the possible actions it can take against candidates and parties?
The EC monitors the adherence of political parties and candidates to the ‘Model Code of Conduct’. The code is a set of norms laid down by the EC, based on a consensus among political parties, spelling out the dos and don’ts for elections. However, it does not have statutory value, and it is enforced only by the moral and constitutional authority of the EC. If the violations are also offences under election law and the criminal law of the land, the EC has the power to recommend registration of cases against the offenders.
However, for some violations — such as canvassing for votes during a period when electioneering is barred, making official announcements while the MCC is in force, and making appeal to voters on sectarian grounds — the EC has the power to advise or censure candidates, in addition to directing registration of cases. In some cases, as recent incidents would show, the EC may bar candidates or leaders from campaigning for specified periods. Asking individuals to leave a constituency or barring entry into certain areas are other powers that the EC may exercise. These powers are not necessarily traceable to any provision in law, but are generally considered inherent because of the sweeping and plenary nature of the EC’s responsibility under the Constitution to ensure free and fair elections.
Its powers extend to postponing elections to any constituency, cancelling an election already notified, and even to abrogate or annul an election already held. While postponement on the grounds of rampant bribery of voters has been done on a few occasions, the resort to the grave action of rescinding the notification for a Lok Sabha constituency happened in Vellore in the current general election. Earlier, by-elections had been called off on similar grounds. In March 2012, the Election Commission cancelled a Rajya Sabha election in Jharkhand after polling was completed, following the emergence of evidence that candidates were bribing voters.
What are the limitations of the EC’s powers?
The EC does not have the power to disqualify candidates who commit electoral malpractices. At best, it may direct the registration of a case. The EC also does not have the power to deregister any political party. However, the Constitution empowers the EC to decide whether a candidate has incurred disqualification by holding an office of profit under the appropriate government, or has been declared an insolvent, or acquired the citizenship of a foreign state. When a question arises whether a candidate has incurred any of these disqualifications, the President of India or Governor has to refer it to the EC. The poll panel’s decision on this is binding.
