How far do you agree with the view that the Election Commission of India (ECI) needs to be granted more rule-making power to enable better conduct of elections?

How far do you agree with the view that the Election Commission of India (ECI) needs to be granted more rule-making power to enable better conduct of elections?

Introduction

The Election Commission of India (ECI) is a constitutional body under Article-324 vested with the responsibilities of superintendence, direction and control of conduct of elections. The Election Commission in the past has demanded that the poll body be made the rule-making authority, instead of the Centre, to empower it to make election-related guidelines as well as the Model Code of Conduct.

NEED FOR GRANTING MORE RULE MAKING POWER

1. The Election Commission of India cannot function independently until the Chief Election Commissioner and the election commissioners are given similar level of protection. Law Commission recommended in its 255th report for providing Constitutional protection to all members of the election commission.
2. Its expenditure being charged from consolidated fund and having an independent secretariat and rule-making authority will secure its unconstrained functioning.
3. Repeated Violation of Model Code of Conduct:

• The Model Code of Conduct, which is routinely invoked, is more spirit, less letter primarily, a moral and ethical restraint on parties in the poll fray.
• Model code of conduct has been flouted many times including political propaganda involving the armed forces with no substantial repercussions against political executives.

4. Increasing Criminalisation of Politics

• Insertion of a new section, 58B, to enable the Election Commission to cancel elections if voters of a constituency are bribed by political parties.
• Power to derecognize political parties on account of violation of model code of conduct and constitution may ensure responsible conduct from political Parties.

5. There is need for “well-defined electoral laws”, instead of the EC frequently utilising its residuary powers under Article 324 of the Constitution. Example: Election Commission cancelled the elections in two local area constituencies of Tamil Nadu in May 2016 by using its power under Article 324 after noticing that some candidates were resorting to abuse of money.

NO NEED FOR GRANTING MORE RULE MAKING POWER

1. ECs are not intended to be permanent appointees; they could not be granted similar protection as CEC. Supreme Court had upheld Article 324(5) in TN Seshan vs Union of India (1995) which provides for different manners of removal of the CEC and the ECs.
2. Comparison of secretariat of ECI with that of secretariat of Lok Sabha or Rajya Sabha and the Supreme Court is not apposite. The Lok Sabha or Rajya Sabha represents the legislative arm of the government whereas the Supreme Court represents the Judiciary which must necessarily be kept separate in line with the doctrine of separation of powers which is the basic structure of the Constitution of India. The ECI is an independent body meant to implement the laws made by Parliament regarding conduct of free and fair elections. Thus, the ECI cannot be placed at par with the Parliament or with the Supreme court
3. The Constitution does not envisage budget allocation for ECI to be charged to the Consolidated Fund of India.
4. Article 327 of the Constitution empowers Parliament to make provisions with respect to all matters relating to or in connection with elections to either House of Parliament or the state legislatures. Essential legislative function which consists of determination of the legislative policy cannot be delegated and delegated legislation cannot be exercised against the legislative policy of the statute.

Elections remain a fundamental condition for democratic legitimacy, ECI has been ensuring democratic transfer of political power from one set of representatives to other since independence. Ideal way will be conferring more rule-making power under the Representation of the People Act, 1950 and the Representation of the People Act, 1951, to election commission in consultation with central government. Law Commission of India in its Report on Electoral Reforms(255th) has suggested strengthening the Election Commission for effectively holding free and fair polls to Parliament and state assemblies.

Value Addition

The ECI had sent a proposal to the Centre in 1998 for an amendment to Article 324 in order to provide similar protection to the ECs. This proposal was reiterated in 2004 when the Commission sent a set of 22 proposals on electoral reforms which came to be placed for examination by the Chairman, Rajya Sabha. The Commission said in its affidavit that the prayers in the petition can only be granted by way of an amendment to the Constitution and thus, it is for the Centre to take appropriate steps in this regard.

Article 324(5) in The Constitution of India 1949

(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine; Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further than any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.