Issues Associated with Election Commission of India

Synopsis: Recently, the Election Commission of India held a discussion. It was in the light of the many questions and doubts being raised regarding the model Code of Conduct and powers of ECI under Article 324.

Background
  • The Model code of conduct (MCC) is a set of guidelines that ECI issues. The political parties, candidates, and governments need to follow MCC during an election.
  • T.N Seshan (former chief election commissioner) enforced the model code of conduct (MCC) for the first time using the powers under Article 324.
  • It brought the issue of ballot rigging and the use of Muscle power during elections under control.
  • Apart from MCC, the ECI also gives directions, instructions, and clarifications on other issues that emerge during the election.
  • However, some issues linked to the model code, and the exercise of the ECI under Article 324, requires clarity.
What is Article 324?
  • Article 324 empowers the Election Commission of India to direct, control, and conduct elections to Parliament and Legislature of every state. It also conducts elections to the offices of the President and Vice President
  • In Mohinder Singh Gill case, the SC stated that Article 324 gives plenary powers to ECI to ensure free and fair elections.
What are the issues?
  1. First, with respect to the Model code, the question about the enforceability of the code remains unresolved.
      • The Model Code was framed on the basis of a consensus among political parties. It has no legal backing.
      • But the commission has the power to suspend or withdraw recognition of a political party. If, it refuses to follow the MCC according to the Election Symbols (Reservation and Allotment) Order, 1968.
      • Now, the question is, since the MCC is legally not enforceable, how can the ECI take punitive action; such as withdrawal of recognition against a political party.
  2. Second, ECI’s intervention in the administrative decisions of a Union or State government during elections is questionable. For example, ECI recently stopped the Kerala Government from continuing to supply kits. It was containing rice, pulses, cooking oil, etc.
      • According to the MCC, if the ECI believes that such actions will affect free and fair elections, It can stop a government from taking any administrative action.
      • The issue here is, whether the distribution of food will affect free and fair elections.
      • Further, The SC in the Subramaniam Balaji case held that the distribution of colour TVs, computers, cycles, goats, cows, etc., that is in accordance with the directive principles of state policy, is permissible during an election.
      • Also, according to Section 123 (2)(b) of the Representation of the People Act, 1951, the declaration of a public policy will not amount to interfering with the free exercise of the electoral right.
  3. Third, under Article 324, ECI has the power to abruptly transfer any senior officials working under State governments. If it believes that the presence of those officials will adversely affect the free and fair election.
      • However, in Mohinder Singh Gill’s case, the Court had made it clear that the ECI can draw power from Article 324 only when no law exists which governs a particular matter.
      • Transfer of an official is within the exclusive jurisdiction of the government. It needs the concurrence of the State governments.
      • Further, Article 324 does not confer absolute powers on the ECI to do anything in connection with the elections.

No constitutional body has absolute power.  Because in the words of justice S.M. Fazalali, if ECI is armed with unlimited and arbitrary powers and if it becomes partisans, it might lead to a constitutional crisis. Integrity and independence of the electoral process are important and indispensable to the democratic system.

Source: The Hindu

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