NEWS  There is still some confusion about the extent and nature of the powers that are available to the Election Commission.

CONTEXT  The ongoing state assembly elections  has brought the Election Commission of India (ECI) into sharp focus.

ELECTION COMMISSION OF INDIA

• ECI is a constitutional body that superintends, directs and controls the conduct of elections.
• It ensures that the elections held are free and fair.
• The body administers elections to the Lok Sabha, Rajya Sabha, and State Legislative Assemblies in India, and the offices of the President and Vice President in the country.

POWERS OF ECI COMES FROM?

• ECI derives its power from article 324 of the constitution.
• It became rather easier to locate the powers of the ECI after the Supreme Court held in Mohinder Singh Gill vs Chief Election Commissioner (AIR 1978 SC 851).
• In this case SC held that the 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.
• All subsequent decisions of the Supreme Court reaffirmed Gill’s decision and thus the ECI was fortified by these court decisions in taking tough measures.

THE MODEL CODE CONDUCT

• The model code of conduct issued by the ECI is a set of guidelines meant for political parties, candidates and governments to adhere to during an election. The code has been issued in exercise of its powers under Article 324.
• This code is based on consensus among political parties.
• Its origin can be traced to a code of conduct for political parties prepared by the Kerala government in 1960 for the Assembly elections.
• It was adopted and refined and enlarged by the ECI in later years, and was enforced strictly from 1991 onwards.
• Besides the code, the ECI issues from time to time directions, instructions and clarifications on a host of issues which crop up in the course of an election.

CONCERNS

• There exists a considerable amount of confusion about the extent and nature of the powers which are available to the ECI in enforcing the code as well as its other decisions in relation to an election.
• Also, since the code of conduct is framed on the basis of a consensus among political parties, it has not been given any legal backing.
• Although a committee of Parliament recommended that the code should be made a part of the Representation of the People Act 1951, the ECI did not agree to it on the ground that once it becomes a part of law, all matters connected with the enforcement of the code will be taken to court, which would delay elections.

UNRESOLVED QUESTIONS

• The position taken by the ECI is sound from a practical point of view. But then the question about the enforceability of the code remains unresolved.
• Paragraph 16A of the Election Symbols (Reservation and Allotment) Order, 1968 says that the commission may suspend or withdraw recognition of a recognised political party if it refuses to observe the model code of conduct.
• But it is doubtful whether this provision is legally sustainable.
• The reason behind this doubt is that withdrawal of the recognition of a party recognised under these orders seriously affects the functioning of political parties.
• Also, when the code is legally not enforceable, how can the ECI resort to a punitive action such as withdrawal of recognition?

ISSUES THAT NEEDS TO EXAMINED

There are two crucial issues which need to be examined in the context of the model code and the exercise of powers by the ECI under Article 324.

1. Transfer of officials

• This issue relates to the abrupt transfer of senior officials working under State governments by an order of the commission.
• Such order is based on the report by the observers of the ECI and on the assumption that the presence of those officials will adversely affect the free and fair election in that State.
• On the contrary, transfer of an official is within the exclusive jurisdiction of the government.
• Also, as the code does not say what the ECI can do; it contains only guidelines for the candidates, political parties and the governments. Further, Article 324 does not confer untrammelled powers on the ECI to do anything in connection with the elections.
• Hence, it is not clear whether the ECI can transfer a State government official in exercise of the general powers under Article 324 or under the model code.
• If transfer of officials is a power which the ECI can exercise without the concurrence of the State governments, the whole State administration could come to a grinding halt. The ECI may transfer even the Chief Secretary or the head of the police force in the State abruptly.

SUPREME COURT INTERPRETATION ON THIS ISSUE

• In Mohinder Singh Gill’s case, the Court had made it abundantly clear that the ECI can draw power from Article 324 only when no law exists which governs a particular matter.
• Transfer of officials, etc is governed by rules made under Article 309 of the Constitution which cannot be bypassed by the ECI under the purported exercise of power conferred by Article 324.

2. Administrative moves

• Another issue relates to the ECI’s intervention in the administrative decisions of a State government or even the union government.
• According to the model code, Ministers cannot announce any financial grants in any form, make any promise of construction of roads, provision of drinking water facilities, etc or make any ad hoc appointments in the government departments or public undertakings.
• But in reality, no government is allowed by the ECI to take any action, administrative or otherwise, if the ECI believes that such actions or decisions will affect free and fair elections.
• For eg. A recent decision of the ECI to stop the Government of Kerala from continuing to supply kits containing rice, pulses, cooking oil, etc is a case in point after the complaint from the Leader of the Opposition in the Assembly.
• The question is whether the ECI could have taken such a decision either under the model code or Article 324.
• The model code does not provide any clue. As regards the use of Article 324, the issue boils down to whether distribution of food items to those in need in a pandemic will affect free and fair elections.

SUPREME  COURT STANCE ON THIS

• 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.
• Further, Section 123 (2)(b) of the Representation of the People Act, 1951 says that declaration of a public policy or the exercise of a legal right will not be regarded as interfering with the free exercise of the electoral right.

CONCLUSION

• The ECI, through the conduct of free and fair elections in an extremely complex country, has restored the purity of the legislative bodies.  However, no constitutional body is vested with unguided and absolute powers.
• Hence, the unlimited and arbitrary powers enjoyed by the ECI need to be addressed given the dangers associated with unbridled  powers.

Reference:

1. https://www.thehindu.com/opinion/lead/the-eci-cannot-be-a-super-government/article34353019.ece