Election Commission - Power and functions
INDIA AND ELECTIONS : India is a Socialist, Secular, Democratic Republic and the largest democracy in the World. The modern Indian nation state came into existence on 15th of August 1947. Since then free and fair elections have been held at regular intervals as per the principles enshrined in the Constitution, Electoral Laws and System.
SINE QUA NON OF ELECTIONS : The pillars of democracy rest on the system of free and fair elections to the Assembly or to the Parliamentary constituencies. The will of the people is expressed through their elected representatives. To ensure free and fair election, a special machinery is provided to man the election process. Article 324 makes provision for a centralised electoral machinery i.e., Election commission of India.
ROLE OF ECI :
The election process for State Assemblies as well as Parliamentary Constituencies is contemplated under the Representation of the People Act, 1950 and 1951 (for short "the Act).
The entire election process is manned by a competent agency called "Election Commission". Article 324 of the Constitution of India postulates the superintendence, direction and control of election to be vested in an "Election Commission".
Clause (1) of Article 324 specially deals with the power of 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 arid of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission referred to in the Constitution as "Election Commission"
EXTENSIVE POWER : Thus, Article 324 of the Constitution of India makes provisions for a Centralised Election machinery. The Election Commission is empowered to issue all necessary directions for the purpose of conducing smooth, free and fair elections.
BAR ON COURTS : Article 329(b) of the Constitution of India postulates the bar to interference by Courts in electoral matters.
The embargo imposed under Article 329 barring interference and the power of Election Commission under Article 324 have been extensively considered by the Supreme Court of India in N. P. Ponnuswami v. The Returning Officer, and Mohinder Singh Gill v. The Chief Election Commission.
The Hon'ble Supreme Court in the following cases has held that it is competent for the Election Commission to supplement the law though it cannot supplant the law:
Mohinder Singh Gill v. Chief Election Commissioner : The Constitution Bench in this case has held that the Election Commission can exercise powers under Article 324 on its own right in an area not covered by the Act.
A. C. Jose v. Shivan Pillai : In the said case it has been held that if the Act and the Rules are silent, the Election Commission can supplement, as under Article 324 it has plenary powers to give directions.
Kanhaiya Lal v. R. K. Trivedi : In the said case it has been held that the Election Commission can operate in an unoccupied field.
Rooplal Sathi v. Nachhatar Singh : In the said case it has been held that the Symbols Order was issued by the Election Commission under Article 324 of the Constitution of India in exercise of its undoubted powers of superintendence, direction and control of the conduct of all elections to Parliament arid Legislature of every State.
ON CRIMINALISATION OF POLITICS :
The Election Commission of India in exercise of its power under Article 324 of the Constitution of India has passed the order dated 28-8-1997 keeping in view that the country is facing the serious problem of criminalisation of politics in which criminals, i.e. persons convicted by courts of law for certain offences, are entering into election fray and contesting as candidates.
In the beginning, Supreme court have have emphasized on the concept of democracy which is the corner stone of the Constitution. There are certain features absence of which can erode the fundamental values of democracy. One of them is holding of free and fair election by adult franchise in a periodical manner as has been held in Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi and others, for it is the heart and soul of the parliamentary system.
The Supreme Court has laid emphasis on the purity of elections in Union of India v. Association for Democratic Reforms and another and, in that context, has observed that elections in this country are fought with the help of money power which is gathered from black sources and once elected to power, it becomes easy to collect tons of black money which is used for retaining power and for re-election. The Court further observed that if on an affidavit a candidate is required to disclose the assets held by him at the time of election, the voter can decide whether he should be re-elected.
It is worth saying that systemic corruption and sponsored criminalization can corrode the fundamental core of elective democracy and, consequently, the constitutional governance. The agonized concern expressed by this Court on being moved by the conscious citizens, as is perceptible from the authorities clearly shows that a democratic republic polity hopes and aspires to be governed by a Government which is run by the elected representatives who do not have any involvement in serious criminal offences or offences relating to corruption, casteism, societal problems, affecting the sovereignty of the nation and many other offences.
COMMITTEES ON ELECTORAL REFORMS :
There are recommendations given by different committees constituted by various Governments for electoral reforms. Some of the reports that have been highlighted at the bar are (i) Goswami Committee on Electoral Reforms (1990), (ii) Vohra Committee Report (1993), (iii) Indrajit Gupta Committee on State Funding of Elections (1998), (iv) Law Commission Report on Reforms of the Electoral Laws (1999), (v) National Commission to Review the Working of the Constitution (2001), (vi) Election Commission of India – Proposed Electoral Reforms (2004), (vii) The Second Administrative Reforms Commission (2008), (vii) Justice J.S. Verma Committee Report on Amendments to Criminal Law (2013), and (ix) Law Commission Report (2014)
ELECTION REFORMS : FEBRUARY 2017
In the public mind, political corruption is the source of most forms of corruption and FM minister Jaitley : Lack of transparency + accountability in the funding of political parties + ceiling of ₹2,000 on cash donation by any individual to a party.
LOOPHOLE : The proposal does not disrupt the flow of illicit political donations but only channels it differently, and will not reduce the proportion of cash from unverifiable sources in the total donations received.
SOLUTION FOR THEM : All that the parties will now have to do is find more people to lend their names to these donations, or better still, find more names of unsuspecting people to be listed as cash donors.
The proposal to allow donors to purchase electoral bonds from banks against cheque and digital payments to be given to registered political parties for redemption, meant to cater to donors’ need to remain anonymous to rival political parties, hardly contributes to transparency. Indeed, donors should not enjoy any anonymity, before tax authorities or the general public. The absence of such anonymity, of course, will bring down the level of contributions from corporate houses and other entities to parties, not such a bad thing.
Far from aiding transparency, the proposal only clouds the funding process.
The Budget makes it mandatory for political parties to file returns within a time limit, but in the absence of extreme penal provisions compliance is likely to be low.
Mr. Jaitley, while raising visions of a crackdown on illicit funding, seems to have left the issue untouched in real terms. Half-measures will not go even halfway in achieving the purpose of bringing about transparency and accountability in political donations.
NOTA and the Indian voter :
None of The Above’ (NOTA) option in the Indian electoral system = so far used in one Lok Sabha election and four rounds of Assembly elections .
MAXIMUM NO. OF VOTES : On an average, the maximum NOTA vote share has not crossed 2.02% of the total votes polled in any election cycle. The perceived cynicism of Indian voters against the political class thus seems exaggerated.
SUPREME COURT : NOTA was introduced in India following the 2013 Supreme Court directive in the People’s Union for Civil Liberties v. Union of India judgment. Thus, India became the 14th country to institute negative voting. However, NOTA in India does not provide for a ‘right to reject’. The candidate with the maximum votes wins the election irrespective of the number of NOTA votes polled.
Delhi : NOTA constituted 1.85% of the total votes polled.
The average NOTA vote share dropped to 0.95% in the 2014 Assembly elections held in eight States — Haryana, Jharkhand, Andhra Pradesh, Sikkim, Odisha, Arunachal Pradesh, Jammu & Kashmir and Maharashtra.
It increased to 2.02% in the 2015 Assembly elections held in Delhi and Bihar.
In the 2016 Assembly elections held in Assam, West Bengal, Kerala, Puducherry and Tamil Nadu, NOTA vote share dropped again to 1.6%. In the 2014 Lok Sabha polls, NOTA constituted 1.1% of the total votes.
ANALYSIS: A quick analysis of NOTA usage in all elections so far does suggest some interesting early pointers.
First, reserved constituencies have seen a relatively larger number of NOTA votes, which points to the continued social prejudice against political reservation for SC/STs.
Second, constituencies affected by left-wing extremism have also recorded higher NOTA performance and here probably it served as an instrument of protest against the State itself.
WAY FORWARD : Electoral option will become a meaningful means of negative voting only if it becomes a ‘right to reject’ rather than being a symbolic instrument to express resentment as it is now. A PIL has already been filed in Madras High Court seeking the full right to reject in place of NOTA.