Election Commission of India

Relevance: GS II- Statutory, regulatory and various quasi-judicial bodies

• Article 324 of the Constitution provides that the power of superintendence, direction and control of elections to parliament, state legislatures, the office of president of India and the office of vice-president of India shall be vested in the election commission.
• Election Commission is an all-India body in the sense that it is common to both the Central government and the state governments

Composition:

• Article 324 of the Constitution has made the following provisions with regard to the composition of the election commission:
• The Election Commission shall consist of the chief election commissioner and a such number of other election commissioners, if any, as the president may from time to time fix.
• The appointment of the chief election commissioner and other election commissioners shall be made by the president.
• When any other election commissioner is so appointed, the chief election commissioner shall act as the chairman of the election commission.
• The president may also appoint after consultation with the election commission such regional commissioners as he may consider necessary to assist the election commission.
• The conditions of service and tenure of office of the election commissioners and the regional commissioners shall be determined by the president.

Election Commissioners

• The chief election commissioner and the two other election commissioners have equal powers and receive equal salary, allowances and other perquisites, which are similar to those of a judge of the Supreme Court.
• In case of difference of opinion amongst the Chief election commissioner and/or two other election commissioners, the matter is decided by the Commission by the majority.
• They hold office for a term of six years or until they attain the age of 65 years, whichever is earlier. They can resign at any time or can also be removed before the expiry of their term. 

Independence

• Article 324 of the Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of the Election Commission:
• The chief election commissioner is provided with the security of tenure.
• He cannot be removed from his office except in the same manner and on the same grounds as a judge of the Supreme Court. In other words, he can be removed by the president on the basis of a resolution passed to that effect by both the Houses of Parliament with the special majority, either on the ground of proved misbehaviour or incapacity. Thus, he does not hold his office till the pleasure of the president, though he is appointed by him.
• The service conditions of the chief election commissioner cannot be varied to his disadvantage after his appointment.
• Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the chief election commissioner. 
• At the state level, the Election Commission is assisted by the chief electoral officer who is appointed by the chief election commissioner in consultation with the state government.
• Below this, at the district level, the collector acts as the district returning officer. He appoints a returning officer for every constituency in the district and presiding officer for every polling booth in the constituency. 

Appointment:

• The genesis of the problem lies in the flawed system of appointment of election commissioners.
• It is currently done unilaterally by the government of the day.

Protection:

• Now, only the Chief Election Commissioner (CEC), and not the other two commissioners, is protected from being removed except through impeachment.
• The other two commissioners having equal voting power in the functioning of the EC can outvote the CEC 10 times a day.
• Here, the uncertainty of elevation by seniority makes them vulnerable to government pressure.
• In this way, the government can control a defiant CEC through the majority voting power of the other two commissioners.
• It is to be noted that the Constitution enabled protection to the CEC as it was a one-man commission initially.

Authority:

• The EC’s reputation also suffers when it is unable to bring to control the unruly political parties, especially the ruling party.
• This is because the EC only has the registering authority under Section 29A of the Representation of the People Act, 1951.
• It does not have the power to de-register parties even for the gravest of violations.

Supreme Court Judgment

• States should appoint independent persons and not bureaucrats holding government office as Election Commissioners. Because the independence of EC cannot be compromised at any cost.
• The court has also asked all states to comply with the constitutional scheme of the independent State Election Commissioner(SEC).
• Under the constitutional mandate, it is the duty of the State to not interfere with the functioning of the State Election Commission.

About State Election Commission(SEC):

• State Election Commission is a constitutional authority. It is constituted under the provisions of Article 243K read with article 243ZA of The Constitution of India.
• Purpose: They were constituted for superintendence, direction, and control of the preparation of electoral rolls for all elections to the Panchayats and the Municipalities.
• Composition: The State Election Commission is a single-member Commission comprising the State Election Commissioner.
• Appointment: Governor appoints the State Election Commissioner of the State. They enjoy the same powers as the Election Commission of India(ECI). SEC can only be removed from his office on the same grounds and procedures as a judge of a High Court.

Systematic Voters’ Education and Electoral Participation (SVEEP)

• SVEEP started in 2009 is the flagship program of the Election Commission of India for voter education, spreading voter awareness and promoting voter literacy in India.
• SVEEP is designed according to the socio-economic, cultural and demographic profile of the state as well as the history of electoral participation in previous rounds of elections and learning thereof.

Remote voting facility

• The Chief Election Commissioner has proposed to include the ‘remote voting facility’ in the upcoming 2024 Lok Sabha elections. This will enable voters to cast votes from remote locations and improve voter turnout. However, the success of this method depends on various other steps including the creation of enabling infrastructure for remote voting. In this article, we will explain the remote voting facility and its challenges in India.

Current Scenario

• Firstly, the first pilot project of the remote voting facility is likely to start in the next 2-3 months.
• Then, a team of experts from IIT Madras and other IITs is working on drafting the modalities of ‘remote voting’ or ‘blockchain’ voting system in full swing.

Significance of Remote Voting Facility (RVF)

• Higher Voter Turnout:  The voter turn in the 2019 Lok Sabha elections was 67.11% across 542 constituencies. The RVF can increase the voter turnout in the upcoming Lok Sabha election. 
• Promote Inclusivity: Individuals who are ‘on the move’ like students, patients, migrant labourers, essential service providers, etc. will become part of the electoral process.
• Flexibility: RVF gives more flexibility to voters. An individual can cast his/her vote from multiple locations and not solely from one registered polling station.
• Greater Political Accountability: RVF will give a voice to unheard groups like migrant workers. The contesting candidates generally did not concern with them, as they will not vote in elections.
• Strengthens Representative Democracy: RVF will ensure more eligible voters cast their vote. Thus, it will help in fulfilling the ambition of the representative democracy. 
• Fulfils Constitutional Mandate: Article 326 of the Indian Constitution has given voting rights to every individual above 18 years i.e. universal adult suffrage. The spirit of this article calls for ensuring universal voter turnout in elections and RVF can help us move closer towards this.

• Recently, the Citizens’ Commission on Elections (CCE), released the second part of its report “An Inquiry into India’s Election System.
• The retired Supreme Court judge Madan B Lokur chairs CCE.
• The report examines the critical aspects of conducting elections. Such as:
  • The integrity and inclusiveness of the electoral rolls.
  • Criminalisation in politics.
  • The use of financial power.
  • Compliance with the model code of conduct.
  • The role of media in conducting elections etc.,

Some important revelations made in the report:

• Since the 2019 Lok Sabha elections, “grave doubts” have been raised around the fairness of the polls.
• The Election Commission of India (ECI) has failed to perform its duties. The report has stated reasons, such as
• Exclusion of marginalized groups from voters’ lists.
• The opacity of electoral bonds.
• The power of big money in winning elections.
• It has warned that India is becoming an “electoral autocracy”

How India’s Election commission has built trust over the years

• Eminent bureaucrats such as Sukumar Sen, TN Seshan, and James Michael Lyngdoh worked for fair and accountable election machinery. Their work yielded citizen’s trust over the election process.
• First, Sukumar Sen, India’s first Chief Election Commissioner. He was remembered for successfully conducting the first general elections despite many barriers such as scope, scale, logistics, and social issues. For example, elections need to be conducted for 176 million citizens, nearly 85% of whom were illiterate.
• Second, TN Seshan the 10th Election Commissioner. He was instrumental in implementing the model code of conduct to curb muscle and monetary power in elections. He enforced strict mechanisms to ensure fairness in the election process. For example,
• Contestants were required to submit full accounts of their expenses for scrutiny. Those, who didn’t abide by polling rules, were arrested.
• Also, officials who were biased towards candidates were promptly suspended.
• He also prohibited election propaganda based on religion and caste-based hatred. For example, he cancelled the Punjab elections in 1991.
• Third, Lyngdoh presided over the Election commission from 2001 to 2004, the period marked by the 2002 Gujarat riots. After the dissolution of the Gujarat assembly after the Gujarat riots, there was immense pressure from the political parties to hold elections earlier than intended. However, Lyngdoh insisted that polls could not be held as the state had not yet recovered from the violence of the riots.

Why the public trust in the Election commission is eroding now?

• First, ECI remains toothless against electoral offences. For example,
• During the 2019 elections, the Election commission gave “clean chits” to politicians, despite provocative political statements during campaigning.
• The EC in a return reply to the supreme court stated that its powers to punish candidates for hate and religious speeches during the election campaign is limited.
• Second, lack of transparency and accountability. For example, the earlier CECs used to proactively engage with the Citizens’ Commission on Elections (CCE) to discuss its reports. But currently, there has been no response from the EC.

Is the Model Code of Conduct legally binding?

• The MCC is not enforceable by law.  However, 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.
• The Election Commission has argued against making the MCC legally binding; stating that elections must be completed within a relatively short time (close to 45 days), and judicial proceedings typically take longer, therefore it is not feasible to make it enforceable by law.
• On the other hand, in 2013, the Standing Committee on Personnel, Public Grievances, Law and Justice, recommended making the MCC legally binding.  In a report on electoral reforms, the Standing Committee observed that most provisions of the MCC are already enforceable through corresponding provisions in other statutes, mentioned above. It recommended that the MCC be made a part of the Representation of the People Act, 1951.

Major Challenges

• Over the years influence of money and criminal elements in politics has increased along with violence and electoral malpractices resulting in the criminalization of politics. The ECI has been unable to arrest this deterioration.
• There has been rampant abuse of power by the state government who at times make large-scale transfers on the eve of elections and posts pliable officials in key positions, using official vehicles and buildings for electioneering, flouting the ECI’s model code of conduct.
• The ECI is not adequately equipped to regulate the political parties. The ECI has no power in enforcing inner-party democracy and regulation of party finances.
• In recent years, an impression is gaining ground that the Election Commission is becoming less and less independent of the Executive which has impacted the image of the institution.
• One of the major institutional drawbacks is non-transparency in the election of CEC and the other two commissioners and is based on the choice of presiding government.
• There have been allegations of EVMs malfunctioning, getting hacked and not registering votes which corrode the general masses trust in the institution.

Way Forward

• Elections are the bedrock of democracy and the EC’s credibility is central to democratic legitimacy.
• Hence, the guardian of elections itself needs urgent institutional safeguards to protect its autonomy.
• It is high time that appointments of election commissioners is depoliticised through a broad-based consultation mechanism.
• The EC must also be empowered to de-register parties for electoral misconduct.
• The protection offered to the chief election commissioner must now be extended to other commissioners (added in 1993 and collectively represent the EC) as well.
• While these reforms may continue to be debated, the EC should not be stooped from asserting the ample authority it currently has under the Constitution.
• Exercising this authority is not the EC's discretion but a constitutional mandate and democracy's foundation.