Elections in India and related Laws

Ipsita Mishra, Student of Law, NLU, Odisha

India is the largest democracy in the World. Since 1947 free and fair elections have been held at regular intervals as per the principles of the Constitution, Electoral Laws and System. The Election Commission of India has complete control over the elections. Election Commission of India is a permanent Constitutional Body. The Election Commission was established in accordance with the Constitution on 25th January 19501.

Elections are conducted according to the constitutional provisions, supplemented by laws made by Parliament. The major laws are the Representation of the People Act, 1950, which mainly deals with the preparation and revision of electoral rolls, the Representation of the People Act, 1951 which deals, in detail, with all aspects of conduct of elections and post election disputes.

Appointment & Tenure of Commissioners

The President appoints Chief Election Commissioner and Election Commissioners. They have tenure of six years, or up to the age of 65 years, whichever is earlier. They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India. The Chief Election Commissioner can be removed from office only through impeachment by Parliament.

Election Machinery

The Commission has a separate Secretariat at New Delhi, consisting of about 300 officials, in a hierarchical set up. Two Deputy Election Commissioners who are the senior most officers in the Secretariat assist the Commission. They are generally appointed from the national civil service of the country and are selected and appointed by the Commission with tenure. Directors, Principal Secretaries, and Secretaries, Under Secretaries and Deputy Directors support the Deputy Election Commissioners in turn. There is functional and territorial distribution of work in the Commission. The work is organized in Divisions, Branches and sections; each of the last mentioned units is in charge of a Section Officer. The main functional divisions are Planning, Judicial, Administration, Information Systems, Media and Secretariat Co-ordination.
The territorial work is distributed among separate units responsible for different Zones into which the 35 constituent States and Union Territories of the country are grouped for convenience of management. At the state level, the election work is supervised, subject to overall superintendence, direction and control of the Commission, by the Chief Electoral Officer of the State, who is appointed by the Commission from amongst senior civil servants proposed by the concerned state government. He is, in most of the States, a full time officer and has a team of supporting staff.

At the district and constituency levels, the District Election Officers, Electoral Registration Officers and Returning Officers, who are assisted by a large number of junior functionaries, perform election work. They all perform their functions relating to elections in addition to their other responsibilities. During election time, however, they are available to the Commission, more or less, on a full time basis.

The gigantic task force for conducting a countrywide general election consists of nearly five million polling personnel and civil police forces. This huge election machinery is deemed to be on deputation to the Election Commission and is subject to its control, superintendence and discipline during the election period, extending over a period of one and half to two months.

Budget & Expenditure

The Secretariat of the Commission has an independent budget, which is finalised directly in consultation between the Commission and the Finance Ministry of the Union Government. The latter generally accepts the recommendations of the Commission for its budgets.

The major expenditure on actual conduct of elections is, however, reflected in the budgets of the concerned constituent unit of the Union – State and Union Territory. If elections are being held only for the Parliament, the expenditure is borne entirely by the Union Government while for the elections being held only for the State Legislature, the expenditure is borne entirely by the concerned State. In case of simultaneous elections to the Parliament and State Legislature, the expenditure is shared equally between the Union and the State Governments. For Capital Equipment, expenditure related to preparation for electoral rolls and the scheme for Electors’ Identity Cards too, the expenditure is shared equally.

Executive Interference Barred

In the performance of its functions, Election Commission is insulated from executive interference. It is the Commission which decides the election schedules for the conduct of elections, whether general elections or bye-elections. Again, it is the Commission, which decides on the location polling stations, assignment of voters to the polling stations, location of counting centres, arrangements to be made in and around polling stations and counting centres and all allied matters.

Election Schedule

The Commission normally announces the schedule of elections in a major Press Conference a few weeks before the formal process is set in motion. The Model Code of Conduct for guidance of candidates and Political Parties immediately comes into effect after such announcement. The formal process for the elections starts with the Notification or Notifications calling upon the electorate to elect Members of a House. As soon as Notifications are issued, Candidates can start filing their nominations in the constituencies from where they wish to contest. These are scrutinised by the Returning Officer of the constituency concerned after the last date for the same is over after about a week. The validly nominated candidates can withdraw from the contest within two days from the date of scrutiny.

Contesting candidates get at least two weeks for political campaign before the actual date of poll. On account of the vast magnitude of operations and the massive size of the electorate, polling is held at least on three days for the national elections. A separate date for counting is fixed and the results declared for each constituency by the concerned Returning Officer. The Commission compiles the complete list of Members elected and issues an appropriate Notification for the due Constitution of the House. With this, the process of elections is complete and the President, in case of the Lok Sabha, and the Governors of the concerned States, in case of Vidhan Sabhas, can then convene their respective Houses to hold their sessions. The entire process takes between 5 to 8 weeks for the national elections, 4 to 5 weeks for separate elections only for Legislative Assemblies.

Political Parties & the Commission

Political parties are registered with the Election Commission under the law. The Commission ensures inner party democracy in their functioning by insisting upon them to hold their organizational elections at periodic intervals. Political Parties so registered with it are granted recognition at the State and National levels by the Election Commission on the basis of their poll performance at general elections according to criteria prescribed by it.

The Commission, as a part of its quasi-judicial jurisdiction, also settles disputes between the splinter groups of such recognised parties. Election Commission ensures a level playing field for the political parties in election fray, through strict observance by them of a Model Code of Conduct evolved with the consensus of political parties. The Commission holds periodical consultations with the political parties on matters connected with the conduct of elections; compliance of Model Code of Conduct and new measures proposed to be introduced by the Commission on election related matters.

Advisory Jurisdiction & Quasi-Judicial Functions

Under the Constitution, the Commission also has advisory jurisdiction in the matter of post election disqualification of sitting members of Parliament and State Legislatures. Further, the cases of persons found guilty of corrupt practices at elections which come before the Supreme Court and High Courts are also referred to the Commission for its opinion on the question as to whether such person shall be disqualified and, if so, for what period. The opinion of the Commission in all such matters is binding on the President or, as the case may be, the Governor to whom such opinion is tendered. The Commission has the power to disqualify a candidate who has failed to lodge an account of his election expenses within the time and in the manner prescribed by law. The Commission has also the power for removing or reducing the period of such disqualification as also other disqualification under the law.

Judicial Review

The decisions of the Commission can be challenged in the High Court and the Supreme Court of the India by appropriate petitions. By long standing convention and several judicial pronouncements, once the actual process of elections has started, the judiciary does not intervene in the actual conduct of the polls. Once the polls are completed and result declared, the Commission cannot review any result on its own. This can only be reviewed through the process of an election petition, which can be filed before the High Court, in respect of elections to the Parliament and State Legislatures. In respect of elections for the offices of the President and Vice President, such petitions can only be filed before the Supreme Court.

Media Policy

The Commission has a comprehensive policy for the media. It holds regular briefings for the mass media-print and electronic, on a regular basis, at close intervals during the election period and on specific occasions as necessary on other occasions. The representatives of the media are also provided facilities to report on actual conduct of poll and counting. They are allowed entry into polling stations and counting centres on the basis of authority letters issued by the Commission. They include members of both international and national media. The Commission also publishes statistical reports and other documents which are available in the public domain. The library of the Commission is available for research and study to members of the academic fraternity; media representatives and anybody else interested. The Commission has, in co-operation with the state owned media – Doordarshan and All India Radio, taken up a major campaign for awareness of voters.

International Co-operation

India is a founding member of the International Institute for Democracy and Electoral Assistance (IDEA), Stockholm, Sweden. In the recent past, the Commission has expanded international contacts by way of sharing of experience and expertise in the areas of Electoral Management and Administration, Electoral Laws and Reforms. Delegates of the Commission have visited Sweden, U.K, Russia, Bangladesh, and the Philippines in recent years. Election Officials from the national electoral bodies and other delegates from the several countries – Russia, Sri Lanka, Nepal, Indonesia, South Africa, Bangladesh, Thailand, Nigeria, Australia, the United States and Afganistan have visited the Commission for a better understanding of the Indian Electoral Process. The Commission has also provided experts and observers for elections to other countries in co-operation with the United Nations and the Commonwealth Secretariat.

New Initiatives by the Election Commission

The Commission has taken several new initiatives in the recent past. Notable among these are, a scheme for use of State owned Electronic Media for broadcast/telecast by Political parties, checking criminalisation of politics, computerisation of electoral rolls, providing electors with Identity Cards, simplifying the procedure for maintenance of accounts and filling of the same by candidates and a variety of measures for strict compliance of Model Code of Conduct, for providing a level playing field to contestants during the elections.

Problems faced

Increasingly money hungry elections leading to unethical, illegal and even mafia provided electoral funding.  The terribly high cost of elections in turn, has led to increased corruption, criminalisation and black money generation in various forms.

  1. With the constituents/electors being the same for all directly elected representatives from the lowest Panchayat level to the Lok Sabha level, there are competing role expectations and conflict of perception.
  2. With the electorate having no role in the selection of candidates and with majority of candidates being elected by minority of votes under the first-past-the-post system, the representative character of the representatives itself becomes doubtful or so to say their representational legitimacy is seriously eroded.
  3. Inaccurate and flawed electoral rolls and voter ID leading to rigging and denial of voting right to a large number of citizens.
  4. Problems in the conduct of elections:
    1. Booth capturing and fraudulent voting by rigging and impersonation.
    2. Flagrant use of raw muscle power in the form of intimidating voters either to vote against their will or not to vote at all, thus taking away the right of free voting from large sections of society and distorting the result thereby.
    3. Involvement of officials and local administration in subverting the electoral process
    4. Engineered mistakes in counting of votes
  1. Criminalisation of the electoral process
  2. Divisive and disruptive tendencies including the misuse of religion and caste in the process of political mobilization of group identities on non-ideological lines.
  3. An ineffective and slow process of dealing with election petitions, rendering the whole process meaningless.
  4. Fake and non-serious candidates who create major practical difficulties and are also used to indirectly subvert the electoral process.
  5. Incongruities in delimitation of constituencies resulting in poor representation.
  6. Problems of instability, hung legislative houses and their relation to the electoral laws and processes.
  7. Last but not the least, loss of systemic legitimacy due to decay in the standards of political morality and decline in the spirit of service and sacrifice in public life.

Elections in parts of the country have become synonymous with intimidation of voters specially poorer sections, rigging, booth capturing, violence against and even killing of candidates and political workers, connivance of officials at the polling stations and at times a complete hijacking of the polling process by unruly and criminal elements. Unfortunately, over a period of time local police forces have also allegedly become involved in the above by becoming partisan and by being guided by local loyalties, caste considerations, as well as by being easily bribed for connivance. What is disturbing are the sporadic allegations of even the central forces acting in a partisan way in some places. Reports of above irregularities in the conduct of elections have become so commonplace that these are not news anymore. Many suggestions have been made to address these issues and most relate to implementing our existing rules and laws effectively. But experience has shown that laws in a low accountability society like India are known more for violation than for any degree of compliance.

The Suggested Reform Options

The suggestions for reform can generally be placed into three broad categories.  The first category attempts to tackle the problems within the boundaries of the current electoral system.  The second category goes a bit further and takes a stand that the present electoral system itself needs to be modified. (The emphasis is on modification or reform and not on altering the basic framework of the system). Both of these categories have to be dealt with together because there is considerable overlapping between the two and we have to view reform suggestions as an integrated package and not piecemeal. There is a third approach which seeks to strike at the root of the problem which is that of the terrible high costs of elections and the question of finding legitimate funds for the purpose.  The suggestion is to cut down the costs drastically by following the Gandhian principles of decentralization of power down to the grassroots levels and building multitiers of Government from below in a bottom-up instead of the present topdown approach.  It is stated by those advocating this approach that the only way to conduct a meaningful electoral exercise in this country is to have direct elections only at local levels with the upper tiers filled by representatives indirectly elected by an electoral college consisting of the representatives manning the lower tiers.

A true democracy as advocated by Gandhi ensures that local, state and national representatives are accountable to the people for local, State and national matters respectively through effective transparency. Such one-to- one accountability may promote responsible politics and attract patriotic and competent professionals and social workers to politics. Our present system based on diffused accountability breeds corruption and attracts self-seekers to politics.  For this breed, interests of national development, welfare of the people and needs of god governance take lower priorities, if any.

The elected representative is too far removed from the people as there are an average of one million voters for each Lok-Sabha constituency spread over a large geographical area. To influence the choice of such a large and geographically dispersed number of voters, social action on the part of the candidate is totally inadequate. And, this creates space and scope for using both money and muscle power. It is no surprise therefore that the candidates have to spend huge amounts of money at the time of campaigning to “purchase” the votes of these distant voters. And this is done mostly through a host of intermediary brokers who become the link in this transaction. These huge election expenses breed huge corruption. This also means that the electors are in no position to hold the candidate accountable nor does the candidate consider himself accountable to these people.

Based on the Indian ethos, Gandhi had advocated a low-expense election system linked with watchdog councils and separate elected chief executives at each local level. He proposed a highly democratic and, what is more important, a highly accountable system. More thought out and more in keeping with the evolution of political culture in our country, many scholars have in recent years adapted these thoughts in their work and advocated a system of direct elections only at the grassroots of the Indian democracy. They propose that without in anyway interfering with the basic structure or features of the Constitution and while fully continuing the parliamentary system, some reforms be brought in the electoral system.  Direct elections should be held on the basis of adult franchise at the level of Panchayats and other local bodies. Panchayats and other local bodies could elect the zila parishads and they could together elect the State legislature. These three could elect the Parliament and in the last analysis the four of these could elect the President. The Prime Minister and the Chief Ministers could be elected by the Parliament and the State Legislatures concerned.  The President, the Prime Minister and the Chief Ministers in order to be elected should each necessarily secure  no less that 50%+1 of the votes cast.  Once elected, the Prime Minister or a Chief Minister should be removable only by a constructive vote of no-confidence.

The fact that the directly elected representatives are all at the grassroots level where they are in contact with their electors on a daily basis, would mean that their accountability to the people will always be high. Corruption will not get the kind of boost and inducement that it gets presently because of an unaccountable remote representative doing what he pleases.

The representatives elected at the grassroots level will also have to win on a 50%+1 vote principle so that their appeal is more universal than parochial. They would then be truly legitimate representatives of their people.  In the alternative, at the lowest tier double-member or multiple member constituencies could be considered.  Local elections do not entail heavy costs. The cost to political parties of indirect State and national elections will be low. Since the national and State governments will handle only higher-level infrastructure and coordination, indirect elections backed by party primaries will facilitate emergence of the best leadership. The ills in the present “first-past-the-post” system will be eliminated because local governments will handle all social issues and State and national governments shall be accountable to local governments as advocated by Gandhi who will have elected them. This will nurture culture, education and values and gradually eliminate social discords. Also, this election process, it is claimed, has the greatest potential to bring public service spirited and sacrifice oriented people to the fore.

There are strong arguments in favour of this Gandhian model and it would be worthwhile that this option is studied deeply and debated widely.  Part II, however, discusses some reform options that may be possible and found necessary within the four walls of the existing system of elections.

Conclusion

If there is continuous community involvement in political administration punctuated by activated phases of well discussed choice of candidates by popular participation, much of unnecessary expenditure which is incurred today could be avoided. Considerable distance may not have to be travelled by candidates nor hidden skeletons in political cupboards tactically uncovered, propagandist marijuana skillfully administered nor violent demonstrations attempted. The dawn-to-dawn multiple speeches and monster rallies, the flood of posters and leaflets and the organizing of transport and other arrangements for large numbers would become otiose. Large campaign funds would not be able to influence the decision of the electors if the selection and election of candidates becomes people’s decision by discussion and not a Hobson’s choice offered by political parties” thus observed the Hon’ble Supreme Court of India.
We have miles to go before we can achieve this ideal goal. Till then, we have no way other than to follow the advice of the Chandogya Upanishad “Yadeva vidya karoti shradhaya upanishadhaha trivisham virothavathi.” It means that if we have faith and conviction and apply our knowledge with deep analytical skills, our action becomes strong and successful. The Indian Constitution does not provide for a formal referendum. But no one can prevent an informal referendum through modern electronic means (J.M. Lyngdoh). Let us therefore join our hands together to strengthen the noble efforts of the Election Commission aimed at curbing money power so that Indian democracy becomes “speaking truth to power, to make truth powerful and power truthful.”

  1. See http://eci.nic.in/eci_main1/the_setup.aspx []

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