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Need of maintaining impartiality and autonomy of Election Commission

  • Category
    Polity & Governance
  • Published
    28th Dec, 2021

Context

The Chief Election Commissioner (CEC) and Election Commissioners have been called by the Executive for a meeting recently.

  • In the light of the recent meeting of Election commissioners with the union government, several eyes have been raised regarding the independence and autonomy of the ECI.

This brief aims to understand the key powers of EC, challenges to exercise it and step needed to assert its autonomy as a constitutional body to uphold democratic value at the helm.

Analysis

What is Election Commission of India (ECI)?

  • The Election Commission of India (ECI) is an autonomous and permanent constitutional body.
  • It is responsible for organizing free and fair elections in the Union and States of India.
  • The Constitution grants the ECI with the power of direction, superintendence, and control of elections to
    • Parliament
    • State legislatures
    • the office of President of India
    • the office of Vice-president of India
  • The ECI does not deal with the elections to the urban bodies such as Municipalities and Panchayats in the states and hence, a separate State Election Commission.

Understanding Indian Electoral System

The Constitution of India has vested in the Election Commission of India the Superintendence, direction, and control of the entire process for conduct of elections to Parliament and Legislature of every State and the offices of President and Vice-President of India.

  • Process of Elections in India:
  • The Indian Electoral system has been broadly divided into two:
    • Direct Election: The first system is followed for the election of the members of Lok Sabha, State Assemblies and assemblies of Union Territories. 
    • Proportional representation (single transferable vote): In the second system, elections are held by proportional representation using a single transferable vote for the President and the Vice-President of India, members of Rajya Sabha and members of Legislative Councils.
  • Features
    • Universal adult franchise: Elections are held by Universal adult franchise. A citizen of India, who is not less than 18 years of age can register as a voter in the electoral roll of India. There is no discrimination on the ground of religion, race, caste, sex or any of them.
    • Reservation in Lok Sabha: There is a provision for reservation of seats for Scheduled Castes and Scheduled Tribes in Lok Sabha and Assemblies of State and Union Territories, but there is no such provision of reservations in Rajya Sabha at the Union level and Legislative councils at the State level.
    • Voting through secret ballot (LS): Voting takes place through secret ballot for the Lok Sabha and State assemblies. It is most important and prerequisite to the public to express their will freely and fairly. 
    • Open ballot system (RS): For the Rajya Sabha and Council of States through the open ballot system is introduced to stop the corruption in those elections.

What are the important functions of ECI?

  • Conducting elections- It perform the following functions:
    • prepares, maintains and periodically updates the Electoral Rolls
    • supervises the nomination of candidates
    • registers political parties
    • monitors the election campaign, including the funding and exponential by candidates
  • Model code of Conduct- It is a set of guidelines issued by the ECI for conduct of political parties and candidates during elections mainly with respect to speeches, polling day, polling booths, portfolios, election manifestos, processions and general conduct.
  • Advisory role- To advise the President or the Governor of a State, as the case may be, on the question of disqualification of any Member of Parliament or a member of a State Legislature, respectively.

Constitutional provisions regarding Elections

  • Part XV (Articles 324-329) of the Constitution empowers Parliament to make laws for regulating the electoral process in the country.
  • Article 324 of the Constitution provides that
    • Powers of ECI-
      • The power of superintendence, direction and control of elections to parliament, state legislatures, the office of President of India and the office of Vice-President of India shall be vested in the election commission.
      • Composition: 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.
      • Currently, the Commission has a Chief Election Commissioner and two Commissioners.
    • Independence of Election Commission-
      • Chief Election Commissioner and the Election Commissioners enjoy the status of a Judge of the Supreme Court of India.
      • The conditions of service of the CEC shall not be varied to his disadvantage after his appointment.
      • 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.
      • Any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner

What are the shortcomings in the EC structure?

  • Tenure on the will of Government: The CEC and ECs are appointed by the President of India and can only be removed by the Parliament with a two-thirds majority in both the Lok Sabha and the Rajya Sabha on the grounds of proved misbehavior or incapacity. Thus, it enjoys its tenure on the will of the Government of the Day.
  • Toothless: The situation of political competition in India has intensified, and political parties or actors stepped up violence. However, the election commission could not arrest this deterioration. 
  • No say to curb political finance: Election commission remains ineffective to curb the political finance. The politicians during the election violating the model code of conduct and also postponed/canceled elections, if the credibility of the election commission is compromised.
  • Unaddressed issues: There is a rising concern related to problems like as of voter bribery and paid news, which the ECI has not been able to address so far.
  • Inefficient functioning: Several critics have raised questions about the inefficiency of the election commission in the case of not to combat black money and other illegal inducement used during the electoral process.

Where does the Constitution lack?

  • The Constitution has not prescribed the qualifications of the members of the Election Commission.
  • The term of the members of the Election Commission is also not defined in the constitution.
  • The Constitution has not debarred the retiring election commissioners from any further appointment by the government.
  • Under Representation of People’s act (1951), the Election commission has no powers to deregister the political parties.

Why distance is important between executive and ECI?

  • The Election Commission functions independently from the executive branch and the commissioners maintain a distance from the government. The wide berth is maintained by the poll panel to avoid any external pressure.
  • ECI’s communication with the government is commonly restricted to the law ministry, and to the home ministry for security arrangements during voting days. According to protocol, if needed, the government officers schedule meetings with the three commissioners, but the latter do not attend meetings or discussions with the administration’s officials.
  • There is a need to maintain an adequate distance between the two organs of the democracy. This will ensure that elections are conducted in a free and fair manner thereby upholding the basic structure of the constitution.

The Supreme Court, in its 1995 order in the TN Seshan vs Union of India case, had also stressed on the need for the Election Commission to remain independent

Suggestions

As the role of Election Commission is vital to the democratic setup of India and uphold the basic structure of the Constitution, several steps are needed to strengthen it.

  • Appointment- Tarkunde Committee (1975) suggested the use of collegium system of appointment for Election commissioners. It will reduce President’s and thus, executive choice.
  • T&C: Parliament should provide for the qualifications and terms of the members of the Election Commission.
  • Model code of conduct (MCC) - It is voluntary at present and it can be given a legal sanction.
  • Learning from global examples- In Canada Chief electoral officer directly reports to Parliament and in USA Federal Election Commissioners are appointed by the President with the advice and consent of the Senate.

Important reports to bring reforms in ECI

  • The reports of Dinesh Goswami Committee on Electoral Reforms (1990)
  • Indrajit Gupta Committee on State Funding of Elections (1998)
  • Law Commission’s Report on Reform of the Electoral Laws (1999)

Conclusion-

India is the largest democracy in the world, and thus, presence of strong democratic institutions will at one hand, holds public trust in democracy and on the other hand, it will act as a model for other countries to replicate.

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