Election Commission of India

The Election Commission of India is an autonomous constitutional authority

responsible for administering election processes in India at national, state and
district level. The body administers elections to the Lok Sabha, Rajya Sabha, state
Legislative Assemblies, state legislative Councils, and the offices of the President
and Vice President of the country. The Election Commission operates under the
authority of Constitution per Article 324, and subsequently enacted Representation
of the People Act.

The commission has the powers under the Constitution, to act in an appropriate
manner when the enacted laws make insufficient provisions to deal with a given
situation in the conduct of an election. Being a constitutional authority, Election
Commission is amongst the few institutions which function with both autonomy
and freedom, along with the country's higher judiciary, the Union Public Service
Commission and the Comptroller and Auditor General of India.

The commission was established in 1950 and originally only had a Chief Election
Commissioner. Two additional Commissioners were appointed to the commission
for the first time on 16 October 1989 (on the eve of the 1989 General Election), but
they had a very short tenure, ending on 1 January 1990.

The Election Commissioner Amendment Act, 1989 was adopted on 1 January

1990 which turned the commission into a multi-member body: a 3-member
Commission has been in operation since then and the decisions by the commission
are made by a majority vote. The Chief Election Commissioner and the two
Election Commissioners who are usually retired IAS officers draw salaries and
allowances at par with those of the Judges of the Supreme Court of India as per the
Chief Election Commissioner and other Election Commissioners (Conditions of
Service) Rules, 1992.

The commission is served by its secretariat located in New Delhi. The Election
Commissioners are assisted by Deputy Election Commissioners, who are generally
IAS officers. They are further assisted by Directors General, Principal Secretaries,
and Secretaries and Under Secretaries.
At the state level, Election Commission is assisted by the Chief Electoral Officer
of the State, who is an IAS officer of Principal Secretary rank. At the district and
constituency levels, the District Magistrates (in their capacity as District Election
Officers), Electoral Registration Officers and Returning Officers perform election
work.

Part XV of the Constitution entitled as Elections constitutes a code in itself,

providing the groundwork for the enactment of appropriate laws and the setting up
of suitable machinery for the conduct of elections.

(a) Election Commission (Article 324)

Article 324 provided for the appointment of an Election Commission to

superintend, direct and control the elections. The Commission is an all-India body
having jurisdiction over elections to Parliament, State Legislatures, offices of the
President and Vice-President.

The constitution of one central body, the Election Commission, having control
over the entire election process in the country, is done to prevent injustice, which
could be done by regional, State Governments, discriminating against any section
of the people in the matters relating to elections.{2} The Commission is constituted
as an autonomous and independent body, with a view, to ensure the conduct of free
and fair elections, which feature is held to be a basic structure of the Constitution.
It has been said to be the most important arbitrator on holding of the elections.

Constitution of the Election Commission

Clause (2) of Article 324 provides that the Election Commission shall consist of
the Chief Election Commissioner and such number of other Election
Commissioners, if any, as the President may from time to time fix. Until
Parliament makes any law in that behalf, the Chief Election Commissioner and
other Election Commissioners are appointed 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 in the performance of its functions. 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. These rules, however, are
subject to any law made by Parliament in this respect.

Chief Election Commissioner vis-a-vis other Election Commissioners

Proviso to Clause (5) of Article 324 says 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. It is
thus clear that the Election Commissioners do not hold the same position as does
the Chief Election Commissioner.

While the CEO is the creation of the Constitution, the number of other Election
Commissioners is determined by the President. While the CEC can be removed
from his office in the manner provided in the Proviso to Clause (5) of Article 324,
the other Commissioners hold their office during the pleasure of the President,
subject to any law made by Parliament in this regard. Again, while the conditions
of service of the CEC cannot be varied to his disadvantage, the conditions of
service of other Commissioners are determined by President by rule, subject to any
law made by Parliament in this regard.

Multi-member Election Commission

Prompted by the Supreme Court's observation in S. S. Dhanoa's case and also in

the wake of certain controversial decisions taken by the CEC resulting in serious
confrontation between the Commission and the Government of India, the latter
decided to provide for a Multi-member Election Commission.

For the purpose, the President promulgated:

The Chief Election Commissioner and other Election Commissioners (Conditions

of Service) Amendment Ordinance, 1993, to amend The Chief Election
Commissioner and other Election Commissioners (Conditions of Service) Act,
1991. The Ordinance was later replaced by the Act passed by Parliament in 1994,
which came into force on January 1, 1994.

The Ordinance provided for a multi-member Election Commission, making CEC

on par with other Election Commissioners and providing that business of the
Commission would be transacted on the basis of unanimous decision and in case of
difference of opinion, on the basis of opinion of the majority.

In T.N. Seshan v. Union of India, the Supreme Court unanimously upheld the
constitutionality of the Act equating the status, powers and authority of the two
Election Commissioners with that of the CEO. The Court held that the CEC did not
enjoy a status superior to other Election Commissioners even though there were
differences between the service conditions of the CEO and other CEs. The scheme
of Article 324, it was held clearly provided for a multi-member body comprising of
the CEO and other ECs.

Independence of Election Commission

The Constitution envisages the setting up of an independent, autonomous Election

Commission.

To secure independence of action, Article 324 contains the following provisions:

That the CEC shall not be removed from his office except in the like manner and
on the like grounds as a Judge of the Supreme Court.

That the conditions of service of the CEC shall not be varied to his disadvantage
after his appointment.

The CEO is, therefore, protected against political and executive influence and for
that reason, he can discharge his functions without fear, favour or pressure from
the executive or the party in power. Even the tenure of office of other Election
Commissioners and the Regional Commissioners is also free of the executive
control in so far, none of them can be removed from office except on the
recommendation of the CEC. This check on the executive's power is to safeguard
the independence of not only these functionaries but the Election Commission as a
body.
Staff of the Election Commission [Article 324 (6)]

The Election Commission generally has few staff of its own. It, however, can
demand necessary staff from the Central and State Governments whenever
required. For that purpose, Clause (6) of Article 324 provides that the President, or
the Governor of a State shall, when so requested by the Election Commission,
make available to the Election Commission or to a Regional Commissioner such
staff as may be necessary for the discharge of the functions conferred on the
Election Commission by Clause (1).

Clause (6) of Article 324, permits the requisition of services of employees working
under the President or the Governor of a State and not those of Bank employees or
that of Life Insurance Corporation, or teachers during teaching days. Once it is
provided that the employees of a State, for a period when the election process is
on, are subject to the control, superintendence and discipline of the Election
Commission, the inevitable corollaries of such power is that the Commission can
direct the posting of such employees for the purpose of ensuring a free and fair
holding of elections. The Commission shall have power to recommend disciplinary
action, to the competent authority, against the officers for insubordination or
dereliction of duty while on election duty.

Functions of the Election Commission

The Election Commission performs the following functions:

1. The superintendence, direction and control of the preparation of electoral

rolls for all elections to Parliament and to the Legislature of every State and
of elections to the offices of President and Vice-President.
2. The conduct of all the elections mentioned.
3. To advise the President or the Governor of a State, as the case may be, on
the question of disqualification of any Member of Parliament or a member
of a State Legislature, respectively. {18}

4. Article 324 has been held to be plenary in character, vesting the whole
responsibility in the Election Commission for national and State elections.
 {19} The power conferred on the Commission under Article 324 (1) is
subjected to two limitations, namely:
5. When Parliament or any State Legislature has made a valid law relating to or
in connection with elections, the Commission shall act in conformity with
such law.
6. The Commission while exercising power shall conform to the rule of law,
act bone fide and be amenable to the norms of natural justice. {20}
7. Superintendence, Direction and Control of Elections

System of Adult Suffrage (Article 326)

Article 326 incorporates the system of adult suffrage for elections to the Lok Sabha
and the Legislative Assembly of every State. According to this system, a person to
be registered as a voter for these elections must comply with the following
requirements:

He must be a citizen of India.

He must not be less than 18 years of age on the appointed day.

He must not be otherwise disqualified under the Constitution or any law made by
the appropriate Legislature on the ground of non-residence, unsoundness of mind,
crime, corrupt or illegal practice.

Parliament has enacted the Representation of People Act, 1950 which requires a
person, to be registered as a voter, to fulfill the following conditions:

He must be a citizen of India.

He must not be declared to be of unsound mind by competent court.

He must not be disqualified from voting under a law relating to corrupt and illegal
practices or other offences in connection with elections.

No person is entitled to be registered in the electoral roll for more than one
constituency or of any constituency more than once. A person shall be disqualified
from voting at any election for 6 years if he is convicted of any of the specified
offences punishable with imprisonment or who, upon the trial of an election
petition is found guilty of any corrupt practice. This disqualification may, however,
be removed by the Election Commission, for reasons recorded by it in writing.

Every person enrolled in the electoral roll by an authority empowered by law to

prepare the electoral roll or to include a name therein, is entitled to cast a vote
unless disqualified under law.

Right to Vote Not a Fundamental Right

The right to vote or stand as a candidate for election is a creature of statute or a

special law and must be subject to the limitations imposed by it. These rights are
not absolute rights, nor are held to be constitutional rights. Though fundamental to
democracy, the right to elect is neither a fundamental right nor a common law
right. So, is the right to be elected and the right to dispute an election.
Amendments of Indian Constitution

The drafters of the Constitution believed that it needed to reflect societal changes
as well as the aspirations of the population.

They did not consider the constitution as a sacred, unchanging law. They,
therefore, included provisions for occasionally incorporating modifications. These
changes are called constitutional amendments.

However, the procedure of amendment laid in the Indian constitution is neither as

easy as in Britain nor as difficult as in the USA.

Who has the Power to Amend the Constitution?

Article 368 in Part XX of the Indian Constitution deals with the power of the
Parliament to amend the constitution and its procedure if requires.

So, the Parliament is empowered to amend or repeal any provision of the

constitution in accordance with the procedure laid down for this purpose.

However, it was ruled by the Supreme Court in Kesavananda Bharati Case 1973
that the parliament cannot amend those provisions which form the “basic structure”
of the Constitution.

Types of Amendment

Article 368 of the Indian Constitution has provided for two types of amendments,
that is by a special majority of Parliament and the special majority of parliament
along with the ratification of half of the state’s legislatures by a simple majority.

Certain provisions of the Constitution require amendment by a simple majority of

each house, that is, a majority of members of each house present and voting
(similar to ordinary legislation). These amendments are not considered to be
amendments under Article 368.

It clearly means that the amendment of Indian Constitution is possible in three

ways:

1. Amendment by a simple majority of the Parliament,

2. Amendment by a special majority of the Parliament, and
 3. Amendment by a special majority of the Parliament, and the ratification of
half of the state legislatures.

Procedure for Amendment as per Article 368

The procedure for amendment of the Indian Constitution as per Article 368 is as
follows:

An amendment of this Constitution may be initiated only by the introduction of a

Bill for the purpose in either House of Parliament and not in the state legislature.

The bill does not require the prior permission of the President for introduction in
the Parliament.

The bill shall be presented by a minister or a private member.

The bill must be passed in each house by a special majority i.e., the majority of the
total membership of the house and the majority of two third of members of the
house present and voting.

Each house must have to pass the bill separately and there is no provision for joint
sitting if any case of disagreement arises between the two houses.

If the bill seeks to amend the federal feature of the constitution, it must also be
ratified by half of the state legislature with a simple majority.

After duly passed by both houses and ratified by the states (if requires), the bill is
presented to the president for his assent.

The President can neither withhold nor return the bill for the reconsideration
purpose of the parliament. Hence, President must have to give his assent to the bill.

After the assent of the President, the bill will become an Act.

What is Simple Majority?

This refers to the majority of more than 50% of the members present and voting
and it is outside the ambit of Article 368. This is also known as the functional
majority or working majority. The simple majority is the most frequently used
form of majority in Parliamentary business. When the constitution or the laws do
not specify the type of majority needed, the simple majority is considered for
voting.

To understand the simple majority, let us consider a situation in Lok Sabha. On a

particular day, out of the total strength of 545, 45 were absent and 100 abstained
from voting on an issue. So only 400 members were present and voting. Then the
simple majority is 50% of 400 plus 1, ie. 201.

Cases where the simple majority is used:

1. To pass Ordinary/Money/Financial bills.

2. To pass Non-Confidence Motion/Adjournment Motion/Censure
Motion/Confidence Motion.
3. For the removal of the Vice President majority required in Lok Sabha is the
simple majority – A67(b).
4. To declare a financial emergency.
5. To declare a state emergency (President’s rule).
6. Formation of new states and alteration of areas, boundaries or names of
existing states,
7. Abolition or creation of legislative councils in states,
8. Use of official language,
9. Citizenship – acquisition, and termination,
10. Election of Speaker/Deputy Speaker of Lok Sabha and State legislatures.
11. Fifth Schedule – administration of scheduled areas and scheduled tribes,
12. Sixth Schedule – administration of tribal areas.

What is Special Majority?

All types of majorities other than the absolute, effective or simple majority are
known as the special majority. A special majority are of 4 types, with different
clauses.

The two most significant provisions that can be changed by a special majority are
the Fundamental Rights and Directive Principles of State Policy (DPSP), however,
any changes must stay within the constraints of the Basic Structure of the
Constitution.
Type 1 – Special Majority as Per Article 249.

Type 2 – Special Majority as per Article 368.

Type 3 – Special Majority as per Article 368 + 50 per cent state ratification by a
simple majority.

Type 4 – Special Majority as per Article 61.

Special Majority as Per Article 249

Special majority as per article 249 requires a majority of 2/3rd members present
and voting. For example, if out of the 245 members in Rajya Sabha, only 150 are
present and voting, then the special majority required as per article 249 would be
101.

Cases where special majority as per article 249 is used:

1. To pass the Rajya Sabha resolution to empower the parliament to make laws
in the state list. (valid up to 1 year, but can be extended any number of
times).

Special Majority as Per Article 368

Special majority as per article 368 requires a majority of 2/3rd members present
and voting supported by more than 50% of the total strength of the house. This
type of majority is used for most of the Constitutional amendment bills. To pass a
constitution amendment bill in Rajya Sabha, in addition to getting the support of
123 members, the bill should be favoured by more than 2/3rd of the members
present and voting.

Cases where special majority as per article 368 is used:

1. To pass a constitutional amendment bill which does not affect federalism.

2. Removal of judges of SC/HC.
3. Removal of CEC/CAG.
4. Approval of a national emergency requires a special majority as per Article
368 in both houses.
5. Resolution by the state legislature for the creation/abolition of the
Legislative Council (Article 169).
Special Majority as Per Article 368 Plus State Ratification

This type of special majority is required when a constitutional amendment bill tries
to change the federal structure. Special majority as per article 368 plus state
ratification requires a majority of 2/3rd members present and voting supported by
more than 50% of the state legislatures by a simple majority.

Cases where special majority as per article 368 plus state ratification is used:

To pass a constitutional amendment bill which affects federalism like the position
of High Court Judges.

Special Majority as Per Article 61

Special majority as per article 61 requires a majority of 2/3rd members of the total
strength of the house. In Lok Sabha, the special majority as per article 61 is 364
while in Rajya Sabha, the special majority as per article 61 is 164.

Cases where special majority as per article 61 is used:

1. For the impeachment of the Indian President.

2. Amendability of Fundamental Rights and Evolution of Basic Structure
3. The question of whether Fundamental Rights can be amended by the
Parliament under 368 or not was the reason for the evolution of the basic
structure. Important incidents related to this are:

Caselaws-

Shankari Prashad Case, 1951

Supreme Court ruled that the power of Parliament to amend the Constitution under
Article 368 also includes the power to amend the Fundamental Rights.

Golakhnath Case, 1967

Supreme Court reversed its earlier judgement. Here, the Supreme Court ruled that
Fundamental Rights are given a “transcendental and immutable” position. So, the
Parliament cannot abridge or take away any of the Fundamental Rights.

24th Amendment Act, 1971

The Parliament reacted to the Court’s judgement in the Golakhnath Case 1967. The
act amended Articles 13 and 368 and declared that Parliament has the power to
abridge or take away any of the Fundamental Rights under Article 368 and such an
act will not be a law under the meaning of Article 13.

Kesavananda Bharati Case, 1973

Supreme Court overruled its judgement made in Golakhnath Case and stated that
the Parliament is empowered to take away any of the Fundamental Rights but at
the same time it introduced a new doctrine of the “Basic Structure”. It ruled that
the Power of Parliament under Article 368 does not enable it to alter the “Basic
Structure/Feature” of the Constitution and declared Fundamental Rights, a basic
structure of the Constitution.

42nd Amendment Act, 1976

The act amended article 368 and declared that there is no limitation on the
constituent power of Parliament and no amendment can be questioned in any court.

Minerva Mills Case, 1980

In this case, Supreme Court invalidated the provision as it excludes judicial review
which is a “basic feature” of the constitution.

Waman Rao Case, 1981

Supreme Court further clarified that the doctrine of Basic Structure would apply to
the constitutional amendment enacted after 24 April 1973 (i.e., after the date of the
judgement of the Keshwanand Bharti case).

Important Amendments of the Indian Constitution

Here is a list of some major amendments to the Indian Constitution:

First Amendment (1951): This amendment protected the rights of property owners
and made it more difficult for the government to enact land reform measures. It
also added the Ninth Schedule, which protected certain laws from being challenged
in the courts.
Fourth Amendment (1955): This amendment authorized the government to take
over the management of “absentee landlord” estates, which were estates owned by
landlords who did not live on or manage the land.

Seventh Amendment (1956): This amendment extended the powers of the

government to acquire property for public purposes and to provide compensation
to the owners.

Eleventh Amendment (1961): This amendment authorized the government to take

over the management of “inam” lands, which were lands granted to individuals or
institutions by the government.

Sixteenth Amendment (1966): This amendment authorized the government to levy

taxes on agricultural income.

Eighteenth Amendment (1971): This amendment made significant changes to the

Indian Constitution, including the creation of a new state (Meghalaya), the
inclusion of a new language (Santali) in the Eighth Schedule, and the abolition of
the privy purses of the former rulers of the princely states.

Twenty-fifth Amendment (1971): This amendment recognized the right to property

as a legal right rather than a fundamental right.

Thirty-ninth Amendment (1975): This amendment protected the constitutional

position of the state of Sikkim after it was merged with India.

Forty-second Amendment (1976): This amendment made a number of changes to

the Indian Constitution, including the addition of the words “secular” and
“socialist” to the Preamble and the insertion of the Fundamental Duties of citizens.

Forty-fourth Amendment (1978): This amendment reversed many of the changes

made by the Forty-second Amendment and restored the rights and freedoms of
citizens.

Fifty-second Amendment (1985): This amendment recognized the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act as a fundamental right.

Sixty-first Amendment (1989): This amendment lowered the voting age from 21 to
18.
Sixty-ninth Amendment (1991): This amendment recognized the capital city of
Delhi as a Union Territory with a legislature.

Seventy-third Amendment (1992): This amendment recognized the right to

panchayats (local self-governments) as a fundamental right and provided for the
reservation of seats for Scheduled Castes and Scheduled Tribes in panchayats.

Seventy-fourth Amendment (1992): This amendment recognized the right to

municipalities (local self-governments) as a fundamental right and provided for the
reservation of seats for Scheduled Castes and Scheduled Tribes in municipalities.

Seventy-seventh Amendment (1995): This amendment provided for the reservation

of seats for Scheduled Castes and Scheduled Tribes in posts in cooperative
societies.

Ninety-third Amendment (2006): This amendment provided for the reservation of

seats for Scheduled Castes and Scheduled Tribes in higher education institutions.

Ninety-fifth Amendment (2009): This amendment provided for the reservation of

seats for Scheduled Castes and Scheduled Tribes in the promotion to government
jobs.

One hundred and third Amendment (2019): This amendment provided for the
reservation of seats for economically weaker sections of society in higher
education institutions.