Indian Political Science Association

REFORMING THE ELECTION COMMISSION

Author(s): B. L. FADIA
Source: The Indian Journal of Political Science, Vol. 53, No. 1 (Jan. - March, 1992), pp. 78-
88
Published by: Indian Political Science Association
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 REFORMING THE ELECTION COMMISSION
B. L. FADIA

The purity and freedom of election can be ensured only

the electoral administration, the basic foundation of democr
is placed beyond the reach of "party Government". The ar
tects of the Indian Constitution attached the highest signific
to an independent electoral machinery for the conduct of election
For this it was necessary that an independent Election Comm
sion with its vast paraphernalia should be set up in the count
Such a Commission would ensure fair and free elections of the
representatives of the people at all levels. It is mainly with the
idea of fulfilling the long cherished desire that the Election Com-
mission of India was ushered in under Article 324 which reads:

"The superintendence, direction and control of the electoral

rolls for, and the conduct of all elections to parliament and
to the legislature of every state and of elections to the offices
of President and Vice-President held under this Constitution,
including the appointment of election tribunals for the deci-
sion of the doubts and disputes arising out of or in connec-
tion with elections to parliament and to the legislatures of
the states, shall be vested in a Commission."
Article 324, Dr. Ambedkar contended, "proposed to centra-
lise the election machinery in the hands of a single commission,
to be assisted by regional Commissioners, working under the
supervision, direction and control of the Election Commission and
not under the control of the state governor as envisaged earlier."'
It was undoubtedly a radical change. The centralisation of
electoral administration was done "to prevent injustice being
done by the provincial Governments to people other than those
who belonged to the provinces racially, linguistically and cul-
turally."8
The Indian Journal of Political Scitnce, Vol. 53, No. 1, January - March, 1992

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 REFORMING THE ELECTION COMMISSION 79

The Election Commission : Composition

To ensure free, fair and impartial elections, the constitu
establishes the Election Commission, a body autonomou
character and free from political or executive influence
Commission is all India body having jurisdiction over electio
parliament, State Legislatures, offices of the President and
President. The reason for having an all India body to super
and conduct elections, rather than separate bodies to or
elections in each state, is that some states have a mixed po
tion, as there are the native people as well as others wh
racially, linguistically or culturally different from the
people. A State Government could discriminate against out
by so managing things as to exclude them from the electora
and thus deprive them of their franchise which is the most
right in a democracy. In order to prevent injustice being d
to any section of the people, it was thought best to hav
central body which would be free from local influences and
control over the entire election machinery in the country.
The Election Commission consists of the Chief Election
Commissioner and such number of Election Commissioners, if
any, as the President may fix from time to time. The Chief
Election Commissioner stands at the apex of the hierarchy of the
Election Commission of India. All these commissioners are
appointed by the President subject to the provisions of any l
enacted by Parliament for the purpose. Indeed, the Presid
appoints them at the behest of the Prime Minister because it i
constitutional necessity under the Parliamentary system
government which India has adopted.
The Chief Election Commissioner acts as the Chairman of
the Election Commission in case any other Election Commissioner
besides him is appointed. The tenure of the Chief Election
Commissioner is independent of the executive discretion, for he
cannot be removed from his office except in the like manner and
on the like grounds as a judge of the Supreme Court.4 Further,
conditions of service of the Chief Election Commissioner cannot
be varied to his disadvantage after his appointment. These pro-
visions of the constitution thus concede a security of tenure to
the Chief Election Commissioner similar toa Judge of the supreme
court. He can therefore discharge his functions without fear,
favour or pressure from the executive or the party in power.

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80 THE INDIAN JOURNAL OF POLITICAL SCIENCE

To assist the Chief Election Commissioner in the perfor-

mance of his onerous duties there exists a large paraphernalia of
the officers and the staff subordinate to him.? Among them are
the Regional Commissioner, Deputy Election Commissioner,
Secretary, Under Secretary, Research Officers etc.

To carry out its operations throughout the length and

breadth of the country, the Election Commission has to maintain
election machinery at different rúngs of the administration. At
the state or the Union Territory level there is the Chief Electoral
Officer as the king- pin in the electoral machinery. He is nomi-
nated by the Election Commission in consultation with the
State/UT Government. He is usually a senior executive or judi.
cial officer of the State Government. He is assisted by the joint,
deputy or assistant Chief Electoràl Officers as well as the rest of
the staff appointed by him id consultation with the State
Government.

At the district level the electoral duties are discharged by

the District Officer or the Executive officer in addition to his
normal administration routine. He was accorded statutory status
only in 1966 through an amendment to the Representation of the
People's Act, 1950.

The responsibility for the preparation and revision of elec-

toral rolls is vested in an officer called the Electoral Registration
Officer. He may have under him Assistant Electoral Registration
Officers. The Officers of the status of deputy cqllectors such as
sub-divisional officer and executive officers of large municipal
corporations are designated as electoral registration officers and
revenue officers junior to them such tehsildars are nominated as
assistant electoral registration officers.

The election in every constituency is supervised by an officer

known as the Returning Officer nominated by the Election Com-
mission in consultation with the government of the state. The
same officer can be nominated as Returning Officer for more than
one constituency. He is assisted by one or morç assistant Return#
ing Officers so designated by the Election Commission. The
Returning Officers for assembly constituencies .are usually drawn
from the cadre of sub-divisiónal officers while those for Parlia-
mentary Constituencies are district officers. The State govern-

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 REFORMING THE ELECTION COMMISSION 81

ment seeds the list of officials with their designations to

Election Commission which after scrutinising the same forma
designates them as such for assembly and Parliamentary con
tuencies.

The staff consisting of Presiding and Polling Officers, for the

actual conduct of the poll is appointed by the District Election
Officer. Prior to 1966, this was the responsibility of the Return-
ing Officer. The District Election Officer may appoint a Presiding
Officer for each polling station and such polling officer or officers
are necessary. The presiding officer keeps order at the polling
station and ensures the fair conduct of the poll. Usually govern-
ment servants with some administrative capacity and some know-
ledge of the election law and reputation for integrity are, there-
fore, picked up for appointment as presiding officers.

Functions and Powers of the Election Commission

The Election Commission of India has to perform multi-

farious duties assigned to it under the Constitution. Some of the
principal functions of the Commission are:

1. Demarcation of Constituencies

To facilitate the process of elections a country has to be

divided into several constituencies. The task of delimiting the
constituencies is generally performed by a delimitation commis-
sion. But the power to delimit parliamentary and assembly con-
stituencies for the first general elections in 1951 was confered on
the President. The President's delimitation order was to be
released on the advice of the Election Commission which also
consulted Parliamentary Advisory Committees set by the Speaker
of Parliament and the Speaker of the respective legislative
assembly to which the delimitation proposals pertained.

The Election Commission distributed the seats district wise

in each one of the States and directed the Chief Electoral Officers
to prepare proposals for the physical demarcation of Constituen-
cies according to the prescribed criteria. The procedure adopted
in the delimitation of constituencies in 1951 led to a virtual power
in the hands of the ruling party to decide about the contours of
the Constituencies as it suited its designs. The association of
Parliamentary Advisory Committees with the delimitation Com-
P-ll

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82 THE INDIAN JOURNAL OF POLITICAL SCIENCE

mission gave top priority to political considerations. The Election

Commission strongly pleaded for taking away this power from
the Parliament. As an outcome of the recommendation of the
Election Commission, the Parliament enacted the Delimitation
Act, 1952. The Delimitation Commission was to consist of three
members, two of whom were to be nominated by the President
from serving or retired judges of the Supreme Court or Hig
Courts while the Chief Election Commissioner was to be an ex-
officio member.

2. Electoral Rolls

The second important but tedious function of the Election

Commission is to prepare for identification the up-to date list of
all the persons who are entitled for voting at the poll.

3. Recognition of Political Parties and Allotment of Symbols

Another important function of the Election Commission is

to allot symbols to the political parties and the candidates, and
also to accord recognition to the political parties. The Commis-
sion has specified certain symbols as reserved and others as free.
The reserved symbols are only available for candidates sponsored
by the political parties and the free symbols are equally available
to other candidates.

The Election Commission has power to adjudicate upon dis-

putes with regard to recognition of political parties and rival
claims to a particular symbol for purposes of elections. What is
the character of the Commission while adjudicating upon the
dispute with regard to the recognition of a political party? The
Supreme Court has held in A P.H.L. Conference Shillong Vs.
W. A. Sangma that the Commission is a tribunal for purposes of
Article 136 while deciding such a controversy.

4. Scrutiny of the Nomination Papers

Another function of the Election Commission is to examine

the nomination papers of the candidates. These papers are
accepted if found in order, but rejected otherwise. This duty is
performed by the Returning officer who notified to all the con«
testing candidates the date, time and place for the formal scru-
tiny of nomination papers.

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 REFORMING THE ELECTION COMMISSION 83

The Returning Officer summarily but judicially examin

the nomination papers and decides the objections raised.
also to see whether the requisite requirements of security de
election symbol, election agent etc. have also been fulfilled
is empowered to reject the nomination papers either by up
ing the objection raised by a rival candidate or on his
motion or any of the following grounds: (a) that the candi
either is not qualified or is disqualified to fill the seat unde
of the relevant constitutional provisions, viz. Articles 84
173 and 191, (b) that the provisions of Sections 33 and 34 o
Representation of the people Act, 1951 have not been co
with; and (c) that the signature of the candidate or the pr
on the nomination papers is not genuine.

5. The Conduct of the Poll

Another stupendous task that the Election Commission
to undertake is the conduct of the poll throughout the wh
India. In a Parliamentary or Assembly constituency, the
rning Officer is to make suitable arrangement for conductin
poll with the prior approval of the Election Commission
Commission can order a re-poll for the whole constituency
compulsion of circumstances. Article 324 confers on the El
Commission necessary powers to conduct the elections incl
the power to countermand the poll in a constituency and o
ing a fresh poll therein because of hooliganism and breakdo
law and order at the time of polling or counting of votes.

6. Election Expenses
Another most controversial function that the Election C
mission has to perform is to scrutinise the accounts of ele
expenses submitted by contestants in elections. In India
contesting candidate is required to maintain and file the acc
of his election expenses within a prescribed period afte
publication of the result of his election. Within 10 days
the last date of filing the returns, the Returning Officer su
to the Election Commission a list of all the candidates and t
agents together with their returns as also his observation in
pect of candidates who have failed to lodge returns in the
fied time and in accordance with the procedure prescribed b
The Commission scrutinizes the accounts and decides wheth

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84 THK INDIAN JOURNAL OF POLITICAL SCIENCE

the returns are in proper form and whether they have been
lodged in time. In case of default it notifies the candidates or
their agents of their disqualification by publishing these in the
Official Gazette.

The Election Commission Under Fire

The country's first CEC, Sukumar Sen, built up an institu-

tion which became an example to the newly free countries in the
'50s and '60s. The conduct of subsequent incumbents too
mostly has been beyond suspicion. Even as the political culture
steadily deteriorated, the election machinery by and large remai»
ned free of controversy. The arrival of T.N. Seshan changed all
that. Seshan plunged headlong into the electoral process pro-
mising a "ruthlessly fair" poll. While his ruthlessness is not
doubted, his claim to fairness is bitterly contested by critics.'

First there were the transfers of officials. As the country

witnessed with dismay states mass transfering their officials to put
in a pliable election machinery in place, Seshan asked five states
including Bihar and Uttar Pradesh to revoke the transfers. At
that time he was applauded for bringing erring politicians to
book, though he may have acted outside his authority. The
model code of conduct, as one legal expert put it, cannot be used
as an excuse to run the state governments. Seshan scheduled
the hearing of the petition against the BJP about misuse of its
symbol just before the elections and further angered the party by
ruling that third parties can be heard in the matter of registra-
tion of a political party. In the face of vehement protests, he
put off the hearings. Seshan raised the spectre of putting off
polls in Bihar citing law and order problems, which evoked alle-
gations that he was trying to ruin theNational Front's prospects.
He took exception to Central ministers issuing out of turn gas and
phone connections. It evoked angry protests from the piqued
ministers, with the Prime Minister having had to intervene to
calm the tempers of his ministerial colleagues. Citing mass rigging
Seshan countermanded elections in five constituencies in Bihar
and Uttar Pradesh including Patna from where former foreign
minister I.K. Gujral was contesting. Gujral accuses Seshan of
vengeance because his Cabinet had shunted Seshan from the top
post of Cabinet secretary as 'he had politicised the office.'7

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 REFORMING THE ELECTION COMMISSION 85

Seshan also has a way of entering the legal grey areas

countermanded the elections in the five constituencies and then
held that the commission had the powers to review its own
decision. However, at least in Meerut and Bulandshahr's case
he said the review had vindicated the countermanding decision.
He also went on TV openly casting doubts on the integrity of
his electoral officers. He actually passed strictures against the
returning officer in his ruling on Meerut countermand review.
Even if true, in its logical conclusion it undermines the commi-
ssion itself. Seshan's ruling that he had the powers to review the
decision also invites legal argument. He obviously went along
with the argument that being a tribunal the Election Commi-
ssion had inherent powers to review its own decisions. Critics,
however, insist that a countermand is like dissolution of the
House and therefore not open to review. Similarly, Seshan silen-
tly endured criticism on the postponement of polls after Rajiv's
assassination before finally disclosing that the dates were not his
choice but he merely went along with the advice of the
Government.

His unconventional style has at least got the parties thinking

on reforms to the institution.

According to L. K. Advani, "The Election Commission

occupies a pivotal place in the scheme of the Indian Constitution.
During recent years it has willingly or unwillingly, abdicated its
independent, supragovernmental authority and accepted for
itself the role of a mere official department charged with the
conduct of elections."

In recent years an impression has gained the ground that

the Election Commission is becoming less and less independent
of the executive than in the earlier years of independence,
because the choice of the Chief Election Commissioner has not
always been based on the criteria which would command the
confidence of all sections of public opinion. The practice of
making it a berth for retiring government officials has, perhaps,
been responsible for the feeling that incumbent so benefited will
be beholden to the Government for his office.

Equally important is the manner of appointing the members

of the Commission and the choice of the Chief Election Commi-

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86 THE INDIAN JOURNAL OF POLITICAL SCIENCE

ssioner. The Constitution provides that the appointment should

be made by the President. As he is to act on the advice of the
Council of Ministers in effect, the selection is made by the govern-
ment of the day. While this may be in keeping with the basic
features of cabinet responsibility under the Parliamentary system
of government, appointment to this high office by the executive
of the day is always open to suspicion and cannot command the
prestige and confidence that should be associated with the office.

The Election Commission is facing the charge of partisan-

ship. On the eve of the Ninth Lok Sabha polls, it was criticised
in the context of the seemingly hesitant approach of Commission
to the complaint against the announcement of the Indira Mahila
Yojana by the then Prime Minister Rajiv Gandhi, in his capacity
as Congress (I) President.

In fact, three of the former Chief Election Commissioners

had opposed the concept of a multi-member body on the ground
that it would delay decision making. However, Peri Shastri had
suggested four years ago to the Government that it examine the
proposal and decide after ascertaining the views of various politi-
cal parties. No action was taken on this for two years but on
the eve of the Ninth Lok Sabha Elections the Government
appointed two more Election Commissioners. This was viewed
with suspicion by some observers who saw in it a blatant attempt
by the then ruling party to influence the Commission's decisions*

Has the Commission been able to function impartially and

independently in the past elections? Has it ensured free and fair
elections? This suspicion got strengthened when it promtly
ordered the DMK Government in Tamil Nadu to desist from
screening documentaries on its achievements in the last one year
and the Andhra Pradesh Government to remove cutouts of
N.T. Rama Rao, depicting him as Krishna, but took its time in
dealing with complaint made by the non-Congress (I) Parties
against the announcement of the Indira Mahila Yojana by the
Congress (I) President who was also the Prime Minister.

Reforming the Election Commission: Suggestions

The Election Commission has called for every effort to elimi-

nate scope for criticism against the election machinery. It has
urged the government to implement the already accepted pro-

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 REFORMING THE ELECTION COMMISSION 87

posai that the appointment of the Chief Election Commissio

be subject to law made by Parliament. It has also suggest
series of reforms to reduce the scope for controversies ove
timing of elections and malpractices such as manipulatio
voter's lists, rigging or booth capturing and misuse of offi
machinery. One of the suggestions made was that the comm
sion be given the same constitutional status as Parliament
Supreme Court, the Comptroller and Auditor General an
Union Public Service Commission. At present, the Elect
Commission is regarded as the weakest pillar of democr
because its secretariat and staff are not insulated compl
against the executive.
The Tarkunde Committee suggested that members of
Election Commission should be appointed by the Presiden
the advice of a Committee consisting of the Prime Minister
Leader of the opposition in the Lok Sabba and the Chief Ju
I. K. Gujaral, former foreign minister says that his part
for appointment of a multi-member Election Commission b
panel independent of the Government. The Congress(I) mer
wants a multi-member commission, already provided for in
constitution.

To restore to the Election Commission, the position and

importance conceived for it by our Constitution makers, L. K.
Advani gave three specific suggestions. Firstly, the Commission
should be a multi-member body as contemplated by Article 324
of the Constitution. Secondly, the practice of nominating retired
secretaries of Government to the Commission must be given up.
Only persons qualified to become judges of the Supreme Court
should be eligible for the Commission's membership. Lastly,
retiring members of the Election Commission should not be re-
appointed to any other office.
We may advance the following suggestions to enhance the
status of the Election Commission:

1. The Election Commission should be a multi* member

body.
2. It's status should be similar to the High Courts and
the Supreme Court.
3. The appointment of its members should be made by a
Committee consisting of the Chief Justice of the

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88 THE INDIAN JOURNAL OF POLITICAL SCIENCE

Supreme Court, the Leader of the House and the Leader

of the opposition.
4. The Commission must be armed with Mandatory powers
to hold by-elections whenever a vacancy arises within
specified time limit.

Conclusions

During the last four decades of its working the Election

Commission of India has acquired for itself a prestigious position
in the constitutional set up of the country. Anybody having a
grievance against a political party, candidate, Minister, or official
can approach the Commission for its redressai. A feeling has
grown in the country that the Election Commission is the only
suitable agency for the removal of their electoral grievances and
can render the requisite help and guidance in all matters pertain-
ing to elections. The Commission has been able to generate a
sense of faith that the people repose in its integrity. In fact, the
Election Commission of India is one of the institutions that has
earned the country credit at home and abroad.

In the ultimate analysis, making the Election Commission

function independently is not enough. The political parties too
will have to play their part in a fair manner because rigging,
booth- capturing and other malpractices do not take place with-
out the connivance of the candidates.

NOTES

1. Bhalla, R.P., "Electoral Mechanism in India" in Virend

Grover (ed.) Political System in India, Vol. 6 New Delhi, 19
p. 11.
2. Constituait Assembly Debates, Vol. VIII, 15 June, 1949,
p. 905.
3. Shiva Rao, B., The Framing of Indians Constitution, New
Delhi, 1968, p. 460.
4. Jain, M. P., Indian Constitutional Law, Bombay, 1987,
p. 451.
5. Chopra, J. K., Politics of Election Reforms in India, New
Delhi, 1989, p. 3.
6. India Today, June 30, 1991, p. 32-33.
7. India Today , June 15, 1991, p. 127.

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