elections
Part XV
In order to ensure free, fair and impartial elections, the Constitution establishes the Election Commission, a body autonomous in character and insulated from political pressure or executive influence. Care has been taken, to ensure that the commission functions as an independent agency free from external pressures from the party in power, or the executive of the day. The commission is set up as a permanent body under article 324(1). It is an all-India body having jurisdiction over elections to Parliament, State Legislature, of the President and Vice-President.
According to article 324(1), the Superintendence, direction and control of the preparation 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 officers of President and Vice-President held under this Constitution shall be vested in the Election Commission.
The Election Commission shall consist of the Chief Election Commissioner and such other Election Commissioners as the President may from time-to-time fix. The Chief Election Commissioner and other Election Commissioners are appointed by the President subject to the provisions of any law made by Parliament for the purpose [Article 324(2)].
When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission [Article 325(3)].
The President may appoint, after consultation with the Election Commission, such Regional Commissioners as the President may consider necessary to assist the Election Commission in the discharge of its functions. The Regional Commissioners may be appointed before each general election to the Lok Sabha and the State Legislative Assemblies, and also before the biennial election to the State Legislative Councils [Article 32(4)].
As the Regional Commissioners are appointed by the President in consultation with the Commission to assist it to perform its function, the Election Commissioners are placed on a higher pedestal than the Regional Commissioners. While the Election Commissioners are members of the Election Commission, the Regional Commissioners are not its members.
The President may make rules to determine the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners. This is, however, subject to any law made by Parliament [Article 324(5)].
The tenure of the Chief Election Commission 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 [Proviso to Article 324(5)].
S.S. Dhanoa v. Union of India, MANU/SC/0399/1991 : AIR 1991 SC 1745: 1991 AIR SCW 1937: JT 1991 (3) SC 290: MANU/SC/0399/1991 : (1991) 3 SCC 567: (1991) 3 SCR 159: 1991 (2) UJ (SC) 555. The Supreme Court held that Election Commissioners cannot be placed on a part with the Chief Election Commissioner in terms of power and authority.
T.N. Seshan v. Union of India, (1995) 4 SCC 611: 1995 AIR SCW 3341. It has been held by the Supreme Court that in cases of differences of opinion between Chief Election Commissioner and the other Commissioners the rule of majority to apply. Any friction among the members would adversely affect the prestige and efficiency of the Commission.
On the basis of the recommendations of the committee on Electoral Reforms Parliament enacted the Chief Election Commissioner and other Election Commissioners Conditions of Service) Act, 1991 which provided that subject to the provisions of the Act, salary, pension and other conditions of service of the Chief Election Commissioner shall be equivalent to those of a Judge of the Supreme Court and salary, pension and other conditions of service of other Election Commissioners shall be equivalent to those of a Judge of a High Court.
The Act of 1991 also provided that the Chief Election Commissioner and other Election Commissioners could hold office for a term of 6 years from the date of assuming the office, provided that the Chief Election Commissioner, who attained the age of 65 years before the expiry of his term of 6 years had to vacate the office on attaining the age of 65 years. Similarly, an Election Commissioner who attained the age of 62 years before expiry of his term had to vacate his office on attaining the age of 62 years.
There shall be one general electoral roll for every territorial constituency (article 325). No person shall be ineligible for inclusion in any such roll on grounds only of religion, race, caste, sex or any of them. The elections to the Parliament and State Legislatures are to be held on the basis of adult suffrage. Every person who is a citizen of India and who is not less than 18 years of age is not otherwise disqualified under this Constitution or any law (Representation of People Act, 1950) made by the Legislature on the ground of non-residence, unsoundness of mind, crime or illegal practice, has a right to be registered as a voter (Article 326).
Article 327 empowers Parliament to make provisions with respect to all matters, relating to or in connection with election to Parliament and State Legislature, the preparation of electoral rolls, the delimitation of constituencies and all other connected matters.
A.C. Jose v. Sivan Pillai, MANU/SC/0341/1984 : AIR 1984 SC 921: (1984) 2 SCC 656: 1984 Ker LT 510: 1984 UJ (SC) 558. The Supreme Court held that the Commission had no power outside the provisions of the Act or rules made by the Legislature under article 327. Where there is no Parliamentary Legislation or rule made thereunder the commission is free to pass any orders in respect of conduct of election. The powers of the Commission are meant to be supplement rather than supplant the law in the matters of superintendence, direction and control of elections under article 324.
Article 328 provides that State Legislatures are given power to make laws with respect to all matters relating to, or in connection with the elections to the House or either House of the State Legislature including the preparation of electoral rolls and all other matters necessary for securing the due Constitution of the House or Houses.
Notwithstanding anything in this Constitution,
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
Article 329 bars the jurisdiction of Courts in respect of certain electoral matters. Clause (a) provides that the validity of any law relating to delimitation of constituencies or allotment of seats to such constituencies cannot be called in question in any court. Clause (b) bars jurisdiction of Civil Courts to entertain disputes relating to elections to Houses of Parliament or State Legislature.
K. Venkatachalam v. A. Swamickan, MANU/SC/0298/1999 : AIR 1999 SC 1723: 1999 AIR SCW 1353: JT 1999 (3) SC 242: MANU/SC/0298/1999 : (1999) 4 SCC 526: (1999) 3 SCALE 12: 1999 (4) Supreme 333: 1999 (2) UJ (SC) 1064. The Supreme Court has held that article 329(b) which bars interference of courts in electoral matters does not come into play in a case which falls under articles 191 and 193 which provides for disqualification of membership and penalty for sitting and voting when disqualified and the whole of election process is over. In such case, the High Court can interfere under article 226 and declare that he was not entitled to sit in the State Assembly.
The Constitution (19th Amendment) Act, 1966, abolished the jurisdiction of Election Tribunal over election disputes. The Amendment has vested this power in the High Courts. The effect of vesting the power in the High Courts was to expedite decision in election disputes.
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