Giving unlimited and unguided powers to Election Commission of India will cause a political havoc or bring about a constitutional crisis, setting at naught the integrity and independence of the electoral process so important and indispensable to the democratic system. Analyze.
DISCOVERING THE POWERS OF ECI :
· Until T.N.Seshan became Chief Election Commissioner, most populace were unaware that Election Commission of India (ECI) had any powers.
· It was him who discovered the ECI’s powers hidden in Article 324 of the Constitution to discipline recalcitrant political parties.
· The Supreme Court decision in Mohinder Singh Gill vs Chief Election Commissioner(AIR 1978 SC 851) made it clear that Article 324 contains plenary powers to ensure free and fair elections and these are vested in the ECI which can take all necessary steps to achieve this constitutional object.
MODEL CODE OF CONDUCT : This paved the way for model code of conduct – a set of guidelines meant for political parties, candidates and governments to adhere to during an election, which can be traced to Kerala elections in 1960 & later was enforced elsewhere in 1991 everywhere.
LEGALITY : This code is issued by ECI based on exercise of powers under Article 324. However, this code does not have any legal backing. And ECI does not accept this proposal, because if this code of conduct becomes part of law, then this matter will become justiciable and this may delay the proposed elections.
UNRESOLVED ISSUES & UNGUIDED POWERS OF ECI :
1. Normally, ECI transfers senior officials on the ground that they will adversely affect the free and fair election. This is normally done without concurrence of state government. This, in effect, bypasses the safeguards under Article 309 of the constitution of India to the senior officials. This power of ECI is untrammelled, and if not regulated, it may bring whole State administration to a grinding halt.
2. As per mode code, only the financial grants in any form or adhoc appointments or promise for construction of roads etc.. cannot be made. In reality, ECI does not allow any decision or action, administrative or otherwise for any government. Recently, ECI stopped kerala government to stop the supply kits containing rice, pulses, cooking oil, etc. Both Article 324 and model code, do not offer answer for the question – whether ECI can stop distribution of food items to those in need in a pandemic on the ground that it may affect free and fair elections.
The Supreme Court had in S. Subramaniam Balaji vs Govt. of T.Nadu & Ors (2013) held that the distribution of colour TVs, computers, cycles, goats, cows, etc, done or promised by the government is in the nature of welfare measures and is in accordance with the directive principles of state policy, and therefore it is permissible during an election. If this so, why the essential supplies are being stopped.
CONCLUSION : No constitutional body including ECI should be vested with unguided and absolute powers. Justice S.M. Fazalali, in A.C. Jose vs Sivan Pillai (1984): “if the [Election] Commission is armed with such unlimited and arbitrary powers and if it ever happens that the persons manning the commission shares oris wedded to a particular ideology, he could by giving odd directions cause a political havoc or bring about a constitutional crisis, setting at naught the integrity and independence of the electoral process so important and indispensable to the democratic system."