The ECI Cannot Be A Super Government

Context: A critical analysis of the role and powers of the Election Commission of India (ECI) in conducting free and fair elections.

About ECI: Evolution of powers -

• Constitutional body: Under Article 324 of the Indian Constitution, the ECI superintends, directs and controls the conduct of elections.
• Discovery of hidden powers by T.N. Seshan in Article 324, which was then used to discipline recalcitrant political parties, who considered rigging the election as their birthright.
• Judicial backing: Supreme Court (S.C.) in Mohinder Singh Gill vs Chief Election Commissioner case held that Article 324 contains plenary powers to ensure free and fair elections, and ECI can take all necessary steps to achieve this constitutional objective.
• The Model Code of Conduct (MCC): Issued by ECI, is a set of guidelines meant for political parties, candidates and governments to adhere to during an election and
  • 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.
  • Under paragraph 16A of Election Symbols Order, 1968, ECI may suspend or withdraw recognition of a recognised political party if it refuses to observe MCC.
  • According to MCC, Ministers cannot announce any financial grants, make any promise of construction of roads, provision of drinking water facilities, etc. or make any ad hoc appointments in government. For e.g. the recent decision by the ECI to stop the distribution of freebies in Kerala.

Issues associated with ECI

• No legal backing for MCC: MCC is based on consensus among political parties.
  • Confusion regarding enforceability: The legal sustainability of the Election Symbols Order, 1968 in suspending recognition seriously affects the functioning of the political parties.
  • ECI’s reservation against bringing MCC under Representation of the People Act 1951: While the Parliamentary Committee recommended bringing MCC under RPA, 1951, ECI fears that it will lead to delay in election due to judicial actions.
• Abrupt transfer of officials: While the transfer of an o?cial is within the exclusive jurisdiction of the government, it is not clear whether the ECI can transfer a State government under Article 324.
  • 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.
  • However, the transfer of officials is governed by rules made under Article 309 of the Constitution, which cannot be bypassed by the ECI through its powers under Article 324.
  • Moreover, to assume that a civil servant will be able to swing the election in favour of the ruling party is extremely unrealistic and naïve, and it re?ects ECI’s lack of con?dence in the e?cacy of politicians’ campaigns.
• Intervention in administrative decisions of Government: While the freebies are distributed across the election times, it becomes essential to argue the impact of such distribution on free and fair election.
  • Subramaniam Balaji vs Govt. of T. Nadu case, S.C. held that distribution of colour T.V.s, computers, cycles, goats, cows, etc., done or promised by the government is in nature of welfare measures and is in accordance with directive principles of state policy, and therefore it is permissible during an election.
  • Section 123 (2)(b) of Representation of the People Act, 1951 says that declaration of a public policy or exercise of a legal right will not be regarded as interfering with the free exercise of electoral right.
• Threat of institutional capture: As cited in C. Jose vs Sivan Pillai case verdict, if it ever happens that persons manning commission shares or is wedded to a particular ideology, he could, by giving odd directions, can cause political havoc or bring about a constitutional crisis.