ECI cannot be a super government

Context:

Elections bring the Election Commission of India (ECI) into sharp focus as this constitutional body superintends, directs and controls the conduct of elections.

Relevance:

GS-II: Polity and Governance (Constitutional Provisions, Constitutional Bodies)

Mains Questions:

Is the Election Commission of India (ECI) free enough to play fair? To what extent does the Model Code of Conduct empower the ECI to enable fair elections? (15 marks)

Dimensions of the Article:

1. About Election Commission of India
2. Structure of the Election Commission
3. Recent Supreme Court Judgement on ECI
4. Model Code of Conduct
5. Transfer of officials
6. Where the Model code and Article 324 lacks?
7. Administrative moves of Governments before the Elections

About Election Commission of India

• The Election Commission of India is an autonomous constitutional authority responsible for administering Union and State election processes in India.
• 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.
• Part XV of the Indian constitution deals with elections, and establishes a commission for these matters.
• The Election Commission was established in accordance with the Constitution on 25th January 1950.
• Article 324 to 329 of the constitution deals with powers, function, tenure, eligibility, etc., of the commission and the member.

Structure of the Election Commission

• Originally the commission had only one election commissioner but after the Election Commissioner Amendment Act 1989, it has been made a multi-member body.
• The commission consists of one Chief Election Commissioner and two Election Commissioners.
• The secretariat of the commission is located in New Delhi.
• At the state level election commission is helped by Chief Electoral Officer who is an IAS rank Officer.
• The President appoints Chief Election Commissioner and Election Commissioners.
• They have a fixed tenure of six years, or up to the age of 65 years, whichever is earlier.
• They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India.
• The Chief Election Commissioner can be removed from office only through a process of removal similar to that of a Supreme Court judge for by Parliament.

Recent Supreme Court Judgement on ECI

• The Supreme Court said that entrusting additional charge of State Election Commissioner to a government official resulted in mockery of the Constitution, and ordered the Goa government to appoint an independent election commissioner.
• The Bench held that people holding public office could not be appointed Election Commissioners and directed States to comply with the constitutional scheme of independent and fair functioning of election commissions. It said the independence of the panels could not be compromised.

Supreme Court on the Powers of the ECI

• The Supreme Court held in Mohinder Singh Gill vs Chief Election Commissioner (AIR 1978 SC 851) 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.
• All subsequent decisions of the Supreme Court reaffirmed the decision in the Mohinder Singh Gill case and thus the ECI was fortified by these court decisions in taking tough measures.

Model Code of Conduct

• The Model Code of Conduct (MCC) issued by the ECI is a set of guidelines meant for political parties, candidates and governments to adhere to during an election. This code is based on consensus among political parties.
• There is absolutely no doubt that elections need to be properly and effectively regulated. The Constitution has clothed the ECI with enough powers to do that. Thus, the code has been issued in exercise of its powers under Article 324.
• 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.
• The model code is observed by all stakeholders for fear of action by the ECI.
• However, 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.

Evolution of the MCC

• The origins of the MCC lie in the Assembly elections of Kerala in 1960, when the State administration prepared a ‘Code of Conduct’ for political actors.
• Subsequently, in the Lok Sabha elections in 1962, the ECI circulated the code to all recognised political parties and State governments and it was wholeheartedly followed.
• It was in 1991 after repeated flouting of the election norms and continued corruption, the EC decided to enforce the MCC more strictly.

Is the model code of conduct legal in nature?

• Since it is a code of conduct framed on the basis of a consensus among political parties, it has not been given any legal backing.
• Certain provisions of the MCC may be enforced through invoking corresponding provisions in other statutes such as the Indian Penal Code 1860, Code of Criminal Procedure 1973, and Representation of the People Act 1951.
• 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.
• 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.
• The main issue is that, when the code is legally not enforceable, how can the ECI resort to a punitive action such as withdrawal of recognition?

Transfer of officials

• One issue relates to the abrupt transfer of senior officials working under State governments by an order of the commission.
• The ECI apparently acts on such reports and orders the transfer on the assumption that the presence of those officials will adversely affect the free and fair election in that State. Transfer of an official is within the exclusive jurisdiction of the government.
• It is actually 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.

Where the Model code and Article 324 lacks?

• 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.
• 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.
• In Mohinder Singh Gill’s case (supra), 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. It means that the ECI is bound to act in accordance with the law in force.
• 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.
• Further, to assume that a police officer or a civil servant will be able to swing the election in favour of the ruling party is extremely unrealistic and naive. It reflects in a way the ECI’s lack of confidence in the efficacy of politicians’ campaigns.

Administrative moves of Governments before the Elections

• 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.
• These are the core guidelines relating to the government. 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.
• 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.
• 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.

-Source: The Hindu