CLASS REPORT - 10.02.

22
Presented by: Ajitha.STR(BA0180003)
How Election Starts and Ends?
- Unstoppable!
1. Marking of constituencies
2. Preparation of Electoral Rolls
3. Registration of Political Parties
4. Political Campaigning
5. Voting Day Preparations
- Exceptional Jurisdiction?
N.P. Ponnuswami vs Returning Officer

- The power to decide election matters under writ jurisdiction

- The returning officer has jurisdiction or authority to order the
rejection of the nomination papers of a candidate.
- High Court has authority to review the order of returning
officer?
MODEL CODE OF CONDUCT
- The Model Code of Conduct for guidance of political parties and candidates is a set of norms which has been
evolved with the consensus of political parties who have consented to abide by the principles embodied in the said
code and also binds them to respect and observe it in its letter and spirit. The Model Code of Conduct (MCC) is set
of guidelines issued by the Election Commission of India for conduct of political parties & candidates during
elections.
- It does not have the teeth to take any punitive action for its own violations. However, there is a legislative enactment punishing certain
violations
- The MCC must be followed by all political parties, and it will remain in effect for all political parties
and candidates until the election in the states set to vote is completed.
- The MCC is in effect from the date of the notification of an election, whether for the Parliament, the
State Assembly, or the Districts, and lasts until the election is completed.
- In Common Cause v Union of India and Ors, the Supreme Court held that the expression °conduct of election° in art 324 of
the Constitution is wide enough to include in its sweep, the power of the Election Commission to issue——in the process of
the conduct of elections—directions to the effect that the political parties shall submit to the Commission for its scrutiny,
the details of the expenditure incurred or authorised by the political parties in connection with the election of their
respective candidates.
Right to Stand in Election

- India allows every eligible person to stand for elections, as long as they have a
‘ticket’
- Right - Qualification and Disqualification.
- Example: J.JAYALALITHA (EX -Chief Minister) -

OFFICE OF PROFIT

-The law does not clearly define what constitutes an office of profit but the definition has
evolved over the years with interpretations made in various court judgments. An office of
profit has been interpreted to be a position that brings to the office-holder some financial
gain, or advantage, or benefit. The amount of such profit is immaterial.
DEFECTION

- The Anti-Defection Law, also known as the 52nd

Constitutional Amendment, that came into effect on March
1985 also has provisions for disqualification under the 10th
schedule. MPs who defect from their parent political party,
vote or abstain from voting against the party’s directions can
be disqualified.
- The first case of disqualification of a member of the Lok
Sabha was that of a Congress MP, Lalduhoma from Mizoram
in 1988.
DE-REGISTRATION OF POLITICAL PARTIES
■ The party has failed to nominate candidates in time for election
■ The party has failed to report in time about internal party changes, such
as change of party name, logo, or replacement of party leader
■ The party has failed to report financial transactions, such as election
expenses and incomes
■ The party no longer fulfills membership requirements
■ The registration was gained through corruption or other unlawful means
PARTY SYMBOLS?

- Through the Election Symbols (Reservation and Allotment ) Order, 1968, the EC provides for
specification, reservation, choice and allotment of symbols in the elections.

How are parties allotted symbols?

How is a party recognized as state party?

What if a party loses its recognition?

What will happen in case of a split in a party?

ELECTIONS
-CHARU SHARMA
 INTRODUCTION
 The Election Commission of India is an autonomous,
constitutionally established federal authority responsible
for administering all the electoral processes in the Republic
of India. (PART 15; 324-329A)

 Under the supervision of the commission, free and fair

elections have been held in India at regular intervals as per
the principles enshrined in the constitution. The EC has the
power of superintendence , direction & control of all (I.D.
Systems pvt. Ltd. V CEC)

 elections to Parliament of India & the State Legislatures

of elections to the office of President of India & Vice
2
President.
TYPES OF ELECTIONS
1. General Elections (17, Since 1952)
• To elect Lok Sabha Members
• After term of Five years
2. Mid-Term Elections
• In case if Lok Sabha or State Legislative Assembly gets
dissolved before the 5 years term [The first mid-term election for
Lok Sabha was held in 1971. The fifth mid-term election for Lok Sabha was held in
1998. So, in total, Lok Sabha has witnessed five mid-term elections.]
3. By- Elections
• When any member of Legislative assembly in Centre or
State falls vacant on account of death, resignation or
disqualification before end of the term. (6 Months)
3
 1st parliamentary election: 1951 for the entire country so
there felt a need for an autonomous body; another reason
why this body was constituted as the government cannot
take over this process by themselves as they will be biased
so an autonomous body was needed.
 Holding periodic free & fair elections are essentials of
democratic system. It is part of basic structure of
Constitution: T.N Sheshan v UOI

 DELIMITATION BODY
 The Commission is an independent body whose orders
cannot be challenged in any court of law. The orders are laid
before the Lok Sabha and the respective State Legislative
Assemblies. However, modifications are not permitted.
(ARTICLE 329) 4
ELECTION COMMISSION OF INDIA (ARTICLE 324)
Composition:
⊹ It headed by Chief Election Commissioner (CEC) assisted by
other Election Commissioners.
⊹ CEC acts as a Chairman of the Election Commission.
⊹ At present it is a THREE MEMBERED body.

Appointment:
⊹ The Chief Election Commissioner (CEC) & other EC are
appointed by the President.
⊹ President may also appoint Regional Commissioners to
assist the Election Commission.

5
POWERS, FUNCTIONS, AND RESPONSIBILITIES OF
ELECTION COMMISSION
⊹ The Constitution has vested to this body superintendence,
direction and control of the entire process for conduct of
elections.
⊹ The Commission’s functions and powers with respect to
elections to the offices of the President, the Vice President,
the state legislators and the Parliament are divided under
three headings:
 Administrative
 Advisory
 Quasi-judicial

6
⊹ In details, these powers and functions are:

• Determining the Electoral Constituencies’ territorial

areas throughout the country on the basis of the
Delimitation Commission Act of Parliament.
• Preparing and periodically revising electoral rolls and
registering all eligible voters.
• Notifying the schedules and dates of elections and
scrutinizing nomination papers.
• Granting recognition to the various political parties
and allocating them election symbols.

7
• Acting as a court to settle disputes concerning the granting
of recognition to political parties and allocating election
symbols to the parties.
• Appointing officers for inquiring into disputes concerning
electoral arrangements.
• Determining the code of conduct to be followed by the
political parties and candidates during elections.
• Preparing a program for publicizing the policies of all the
political parties on various media like TV and radio during
elections.
• Advising the President on matters concerning the
disqualification of MPs.
• Advising the Governor on matters concerning the
disqualification of MLAs.
8
• Cancelling polls in case of booth capturing, rigging, violence
and other irregularities.
• Requesting the Governor or the President for
requisitioning the staff required for conducting elections.
• Supervising the machinery of elections throughout the
country for ensuring the conduct of free and fair elections.
• Advising the President on whether elections can be held in
a state that is under the President’s rule, in order to
extend the period of emergency after 1 year.
• Registering political parties and granting them the status
of national or state parties (depending on their poll
performance).

9
THANK YOU!
10
 CLASS HELD ON:

ELECTION LAWS
14.02.2022

CLASS BRIEFED ON:

15.02.2022
CLASS REPORT REPORT SUBMITTED

Topic: “an introduction ON: 18.02.2022

to the election
commission of IndIa”

SUBMITTED BY: KRISHNA J

BA0180021
 ELECTION LAWS 02/14/2022

SESSION REPORT
DATE: 18.02.2022
SESSION: 1st hour on 15.02.2022

INTRODUCTION TO THE ELECTION COMMISION OF INDIA

1. RESOURCE PERSON:

Mr. S. Mohammed Azaad, Assistant Professor of Law at Tamil Nadu National Law University
(TNNLU), Tiruchirappalli.

2. RAPPORTEUR:

Ms. Krishna J (BA0180021), Batch of 2023, studying B.A LLB (Hons) at Tamil Nadu National
Law University (TNNLU), Tiruchirappalli.

3. CONTENTS OF THE SESSION

3.1. Need for an election commission

When India became independent, the question of how to conduct the elections effectively came
into picture, the need for an independent body to supervise the same was understood by the
drafters of the constitution. However, there was still doubt as to whether a separate body was
required for managing elections in India. Arguments were raised in support of this proposal in
the constituent assembly. SP Sen Verma a member of Constituent Assembly argued for the
establishment of Election Commission of India by citing the “Vast and scattered electorate”.
According to him it was necessary to have an election commission that is dedicated to the
conduct of elections, it was necessary to ensure that democracy reaches the grassroots. The
vision of the drafters of the constitution was that they wanted a “Broad Based Pyramidical
approach not a top heavy and conical one”, the idea being that all persons no matter their
gender, religion, caste and geographical location should be given an opportunity to case their
vote. This was possible only if a separate body like the election commission was established.

Once the need for the election commission was established there was a question as to whether
should there be separate Election Commission for state elections and parliament elections or
will it be enough to have a single central election commission for both. After debate, a
conclusion was reached that since India is was new democratic country, one single commission
 ELECTION LAWS 02/14/2022

would be better than multiple ones because this will ensure uniformity of practise and avoid
confusions. Dr. Ambedkar also agreed to this perspective and that was how Article 324 was
formed.

3.2.Nature of Election Commission of India (ECI)

For the democratic process to run smoothly the ECI should be an autonomous body. Here
autonomy refers to being free from both political and governmental influence. Only when the
ECI is autonomous free and fair elections can be ensured. Free and fair elections have been
described as one of the basic features of the constitution; This was established in the case of
Indira Nehru Gandhi vs. Raj Narain. ECI is a constitutional body, it can be described as a
constitutional body corporate, i.e. it will remain to exists no matter who is in power or who
remains the persons in office. ECI is works as a single central body, this was done to reduce
discrimination in the local level considering many states have a mixture of population and
include people belonging to different parts of the country, the state government may make
policies that are favourable to the majority which might affect the electoral process hence such
a decision was made. According to Article 324 of the constitution, chief election commissioner
(CEC) is the head of the ECI. CEC is an independent constitutional authority and has security
of tenure like that of a judge of the Supreme Court. Further, ECI has the jurisdiction over all
elections to parliament and state legislatures.

3.3. Article 324

 ELECTION LAWS 02/14/2022

Article 324 (1) of the constitution describes the “Superintendence, direction and control of
elections to be vested in an Election Commission”. Article 324 gives jurisdiction to the ECI to
conduct elections to the parliament and state legislatures. It also has jurisdiction over the presidential
and vice-presidential elections. However, when it comes to other elections not mentioned in here and
disputes surrounding it, Article 324 is silent on the same. Article 324(2) on the other hands talks about
the CEC and further gives the president the power to appoint other election commissioners (OEC). This
post can be created on the discretion of the president provided there are no laws made by the parliament
on the same issue. However, clause (3) clearly states that under such a circumstance the CEC shall be
the chairman of the ECI. Further, clause (4) gives the president the power to appoint regional elections
commissioners (REC) who primarily look after state elections. Clause (5) talks about how the election
commissioners can be removed from their offices. In case of CEC a similar procedure like the one
mentioned in Article 124 i.e. like in case of a judge of the Supreme Court should be followed. However,
OEC and REC can be removed upon the recommendation of the CEC.

3.4. Types of election commissioners

Based on the method of removal, the election commissioners can be classified as the following:

TYPES OF ELECTION
COMMISSIONERS

CEC OEC REC

Can only be Can be removed Can be removed

removed in a on the on the
similar way as a recommendation recommendation
judge of SC of CEC of CEC

This distinction has led to a lot of arguments regarding the status of CEC, one of the arguments
that was raised was that since the removal of CEC is done similarly to that of an SC Judge the
qualifications for appointing the CEC should also be the same. That is that the CEC should
 ELECTION LAWS 02/14/2022

have the same qualifications that a judge of SC requires. As of yet, there is no law either in the
constitution or in any legislation made by the parliament that requires the CEC to have certain
qualifications. It has been observed that senior IAS officers are generally appointed to this post.
At times in the past political leaders or lawyers have also been appointed as the CEC. In the
early days Politicians like RK Trivedi (Governor of Gujarat), Rama Devi (Governor of
Karnataka), MS Gill (congress leader), P. Shastri (Lawyer) were appointed to this position. But
post 2000 we see generally IAS and IRS officers being appointed to the position of CEC.1

The question of impartiality of the CEC has been raised multiple times, since the CEC is
appointed by the president upon on the advice of the council of ministers, the post at times is
capable of being influenced by political leanings. To combat this, LK Advani the then leader
of opposition had in 2012 asked for reform in the appointment of CEC. He proposed
a bipartisan collegium consisting of the Prime Minister, the Chief Justice, the law minister and
the Leaders of the Opposition in the Lok Sabha and the Rajya Sabha to be formed for the
appointment of CEC. So that impartiality of the CEC can be ensured.2

3.5.CEC: First among equals or superior?

Now, after learning these distinctions a question arises as to whether the CEC is superior to the
OEC’s considering that his (CEC’s) tenure is protected under the constitution as described
under Article 324 whereas OEC’s are not. When this question was asked the class looked at it
from two different perspectives

The first perspective put forth was that CEC is superior, since there is a rigid procedure fixed
for the removal of CEC, and more protection is given to the CEC. Further, he cannot be
removed according to normal procedures and requires an impeachment procedure similar to
that of a Supreme Court judge, whereas no such case is made for OECs and RCs further they
can be removed on the recommendation of the CEC. This according to the first perspective
clearly shows that the CEC has more power and is superior to that of the OECs

The second perspective is that the CEC is not superior. Article 324(2) uses the term “shall”
while refereeing to the appointment of CEC this means that the position of CEC is mandatory
in nature. However, whether there is OEC or REC is up to the discretion of the president. On

1
https://eci.gov.in/former-cec-ec/
2
https://web.archive.org/web/20131101092927/http://articles.timesofindia.indiatimes.com/2012-
06-05/india/32055097_1_karunanidhi-backs-collegium-l-k-advani
 ELECTION LAWS 02/14/2022

a reading of Article 324 it is clear that under any circumstance there should be a CEC.
Therefore, the removal process in clause (5) makes sense. If a rigid procedure like the one
mentioned in Article 324 (5) is not put in place for the removal of CEC, and if the CEC can be
removed on the whims of the governments in power, then we might end up in a situation where
the election commission has no chairman. It will like be many other tribunals in India, where
top positions tend to remain vacant. This will result in a lot of problems including compromised
elections. To avoid this the following provision has been put in place, it has nothing to do with
the superiority of the CEC. To add on to this point another argument that was raised was that
by securing the tenure of CEC, the constitution is indirectly securing the positions of RECs and
OECs the reason being, that they can only be removed on the recommendation of CEC and the
governments in power cannot force CEC to do so. This will in turn result in the overall
independence of the ECI as an institution.

However, this perspective remains true only in circumstances where the CEC and OECs are
working together harmoniously. In a situation where there is difference of opinion between
elections commissioners, considering the discretionary power wielded by the CEC, the
question arises whether he can misuse it to remove the OCE’s who do not agree with him.
Therefore, to answer this question one has to look at how the courts have interpreted Article
324 of the constitution regarding the position of CEC and OEC’s and the relationship between
them. TN Sheshan v UOI and SS Dhanoa v UOI are two prominent cases that discuss the same
in detail. The following cases will be discussed in detail in the next class.

4. CONCLUSION
The session concluded with the resource person noting down the students’ perspectives on the
position of CEC with respect to OECs based on their understanding and reading of Article 324.
Students had conflicting views on “whether the CEC is superior to the OECs” or “Whether
the CEC is just the first among equals”. The positions were substantiated by their (the
students’) interpretations of Article 324. Further, the resource person asked the students to read
the decisions of the Supreme Court in the cases of TN Sheshan v UOI and SS Dhanoa v UOI
for the subsequent lecture so that a conclusion on the topic could be reached. The class ended
with a question put forth by a student wherein she brought up the question of “Why only the
parliament can make laws relating to the functioning of election commission despite the fact
that state election commissions now exist and take care of local body elections at the state
level?” Her question was “why the state legislature is explicitly excluded from these powers”.
 ELECTION LAWS 02/14/2022

The resource person ended the lecture by giving a brief answer that this is because the
constitution specifies so, and the said that the detailed answer would be provided in the
subsequent lecture considering the paucity of time.

5. METHOD OF DELIVERY

A discussion cum lecture method was used to carry out the lecture. Students were given ample
number of opportunities to present their views and the resource person incorporated the same
in his lecture and made the sessions very interactive.

6. TEACHING AIDS USED

The session was carried out online through Cisco Webex platform. The resource person also
used a PowerPoint presentation to enhance the clarity of the lecture.

7. INTENSITY OF INTERACTION

The lecture was very interactive, the resource person asked the views of the students while
discussing various topics. The resource person took inputs from the students and the students
asked some very important questions in the areas of the functioning of the ECI, the role of
parliament in making laws related to the ECI, powers and the position of CEC within the ECI,
the relationship between the CEC, OECs and RECs etc. While discussing Article 324, the
resource person first asked the students of their interpretation and understanding before
explaining the same. Therefore, the session was very interactive and the discussions enabled
the students to look at the issue from various perspectives.

8. RELEVANCY AND USEFULNESS OF THE SESSION TO PARTICIPANTS

The session was useful and informative to all the, the students got an opportunity to understand
the reasons for the establishment of ECI, the nature of ECI and Article 324 of the constitution.
The lecture was a good introduction to the election commission of India, it enables all students
irrespective of their previous knowledge and understandings of the topic were able to get a
proper and conclusive introduction to the topic. To me personally, a lot of doubts I had in my
mind regarding the need for election commission and the reasons behind its institution and
functioning were made clear after this session. This lecture made me appreciate the thought
and effort went into designing this very important institution of our country.

9. DESCRIPTIVE QUESTIONS
 ELECTION LAWS 02/14/2022

1. Why did the constituent assembly think it was necessary to establish an independent
body like the ECI for conducting elections in India?

Hints: Constituent assembly debates, Vast and scattered electorate, autonomy essential for
free and fair elections, Indira Nehru Gandhi v UOI, broad based pyramidal approach as
compared to a top-heavy conical approach, free and fair elections essential for maintaining
democracy.

2. What was the reason for establishing a single central election commission in India as
opposed to the separate election commissions for individual states? How far has this
move been effective?

Hints: Newly independent country uniformity of election procedure, different states have
different demographic make-up, may lead to discrimination. Effective since was able to
conduct elections successfully, when panchayat elections came single boy not sufficient- state
election commissions established.

3. Who are the different types of election commissioners according to Article 324 of the
constitution? Does Article 324 give us any idea about the power of Chief election
Commissioner vis-a-vi that of the other election commissioners?

Hints: Three types of ECs, CEC, OEC and REC, based on the method of removal, CEC same
as that of an SC judge whereas REC and OECs can be removed on the recommendation of the
CEC. Art.324- not clear regarding the power exercised by CEC vis-a-vi OECs. First among
equals or superior? - judicial decisions- TN Sheshan case and SS Dhanoa.

10. MCQ’s

1. The ECI is responsible for the following elections?

a. Elections to the state legislature

b. Elections to the parliament

c. Election to the post of the president of India

d. All of the above

Ans: (d)

2. The ECI shall have

 ELECTION LAWS 02/14/2022

a. Chief election commissioner

b. Other election commissioners

c. Regional election commissioners

d. All of the above

Ans: (a) Chief election commissioner

3. The following person/s can be removed by the president by exercising his discretion
under Article 324

a. Chief election commissioner

b. Other election commissioners

c. Regional election commissioners

d. Both b and c

Ans: (d) Both (b) and (c)

4. What is not the reason for establishing a single election commission?

a. Ensuring uniformity in elections

b. Ensuring that state governments do not discriminate based on ethnicity or religion

c. Need to hire less employees

d. None of the above

Ans: (c) Need to hire less employees

5. What are the reasons for establishing the election commission of India?

a. The vast and scattered electorate

b. Ensuring autonomy in elections

c. Making sure that democracy reaches the grassroots

d. All of the above

Ans: (d) All of the above.

CLASS BRIEFING
ELECTION LAWS
15/02/2022
- MANIMOZHI B
Topics Covered:
1.State Legislatures’ power
to enact laws w.r.t
elections.
2.History of Transition of ECI
from single-member body
to multi-member body
corporate.
 1. State Legislatures’ power to
Enact laws relating to elections.
◦ Part XV r/w Schedule 7, Entry 72 of Union list and Entry 37 of State list
of the Constitution.

◦ Parliament’s legislative power > States’ legislative power.

◦ A. 326 (Universal Adult Suffrage)- ‘appropriate legislature’.

◦ A. 327 r/w Entry 72- Broad, Inclusive & Absolute Power to Parliament.
[words and phrases: ‘may from time to time’, ‘including’, ‘all other
matters necessary’.]

◦ If read in context, surrounding sections (A. 324)- wider legislative

power to parliament is evident.

◦ Only restrictive phrase in A.327, ‘subject to the provisions of the

constitution’.
◦ Functions of ECI, spotted in A. 327 – 1. preparation of electoral
rolls, 2. delimitation of constituencies.

◦ Plenary powers + Residuary powers = Total powers of ECI.

◦ A. 328, State legislatures’ legislative power in electoral

matters- subject to two conditions; consistent with 1.
constitutional provisions [“subject to the provisions of the
constitution”] 2. parliamentary laws/provisions[“in so far as
provision in that behalf is not made by parliament”]

◦ Interpreted the last phrase – states cannot make legal

provisions already made by parliament – Occupied field
doctrine.
◦ Power to enact reg. ‘delimitation of constituencies’, not mentioned.
Why?

◦ CAD clarifies. Scheme/Object of A. 327 & A. 328 is to render plenary

powers to Parliament and ‘residuary powers’ to State legislatures.

◦ A. 328 is a ‘residuary article’. Primary obligation to Parliament was

aimed. Constitution of India

◦ Doctrines- Occupied field, repugnancy, pith & substance may

become relevant when the legislative power distribution between
state and centre is disputed.

◦ Can parliament make law in derogation with already existing state

law by exercising power u/A. 327? –applying repugnancy doctrine,
central law would sustain – because states hold ‘complementary/
residuary’ power in this regard (Constitution of India; NP Ponnuswamy
v. Returning Officer, AIR 1952 SC 64, para 5)
2. History of Transition of ECI from
Single-member body to Multi-
member body corporate.
◦ Sets premise to SS Dhanoa v. UOI & Ors. Case.

◦ 1950 – 1989: 40 years, ECI was a single-member body.

◦ CEC = ECI, till 1989.

◦ During this time, totally 8 Lok Sabha elections & innumerable

state elections were conducted successfully by only the CECs.

◦ In late 1989, when 9th LS election was nearing, single-member

body was transformed into 3 member body with 1 CEC and 2
OECs.
◦ Questions: What was the need? What was the exact political
situation in India between 1986-1989?

◦ Single member body was efficient. There was no problem w.r.t the
functional efficiency of ECI.

◦ The then PM & President, Rajiv Gandhi & Giani Zail Singh were at
loggerheads. [Excerpt from the book ‘A Rude Life: A Memoir’ by Vir
Sanghvi. “he (Zail Singh) wants a second term which we (INC) are
not going to give him….he wants to sit in Rashtrapati Bhavan and
play Punjab politics?”]

◦ In 1986, when presidential election was about to begin, PM Rajiv

Gandhi wanted to change the election rules and thereby curtail
the chance of taking second term by Zail Singh.
◦ In this regard, the then CEC, RVS Peri Sastri did not go in
agreement with the PM. Big split in Election Commission as EC Ashok
Lavasa stands up against clean chits to Modi (theprint.in)

◦ Realising LS election in 2-3 years, PM decided to ‘reduce’ the

power of CEC and transferred ECI from one-member body to
multi-member body. An Expert Explains: How EC evolved, what rules it
follows in case of disagreement | Explained News,The Indian Express

◦ Oct, 1989: the then President, Ramaswamy Venkataraman issued 2

notifications.

1. on 7th Oct- Introducing 2 OEC posts in ECI.

2. on 16th Oct- appointment of SS Dhanoa and VS Seigell as OECs.

◦ SS Dhanoa v. UOI & Ors., (will be continued).

 CLASS
REPORT
ELECTION LAW- 17.2.2022
Presented by: Suvitha .V
 ESENTATION OUTLIN
PR E
CLAIMS.
S.S. DHANOA VS WHETHER THE
UNION OF INDIA AND CONSTITUTION
ORS OF INDIA TALK
ABOUT
ISSUES ABOLISHMNET
JUDGEMENT
ANALYSIS OF
REASONING
 one election
commissioner -
synonymous to election
commission- monopoly

Removal of CEC - removed from his office

except in like manner and on the like
grounds as a Judge of the Supreme Court -
Impeachment
conditions of service of shall not be var- ied
to his disadvantage after his
appointmentImpeachment

Impeachment- Article 124(4) Judges (Inquiry)

Act, 1968.
onerous in order to keep the judges independent
of any external pressure.
‘misbehavior’ or ‘incapacity’.
M Krishna Swami v Union of India
two-thirds majority in both the Lok Sabha and the
Rajya Sabha
DILUTE THE POWER
Increase the number from 1 to 3 via two notification
Creation / appointment
Serious of question -State of evolution , how these
people going to work same vs different.
what happen there arise a disagreemnt and descanting
opinion .
dissenting opinion on a panel's ruling of complaints
against Prime Minister Narendra Modi and Amit Shah
during the Lok Sabha election campaign.The repeated
failure to record his dissent in the orders of the
commission has rendered his presence in the meetings
“irrelevant and meaningless
 Descanting opinion
Four of his dissenting opinions were in cases pertaining to Prime
Minister Narendra Modi. minority decisions" were
being "suppressed in a
manner contrary to well-
Section 10 (Disposal of business by Election Commission) of The
established conventions
Election Commission (Conditions of Service of Election observed by multi-member
Commissioners and Transaction of Business) Act, 1991, lays statutory bodies"
down that “all business of the Election Commission shall, as far The honest, however, go
on regardless, perhaps
as possible, be transacted unanimously”
driven by an inner force
that borders on
However, provided for in the Act itself, which says: “If the Chief recklessness. A society
Election Commissioner (CEC) and other Election Commissioners that creates hurdles which
(ECs) differ in opinion on any matter, such matter shall be exhaust the honest or
wound them paves the
decided according to the opinion of the majority”. path for its own perdition".
 You
DID
KNOW?
one member - two more addition- situation in
1950 - 19869 parliamentary election -
Immediate after election problem escalated
The igniting tussles like taking side of
government vs opposition
 HISTORY BROUGHT TO LIFE
VP Singh Government - come to play they repealed the previous
decision taken by the congress government
Again the ECI become one member body with CEC alone
S. S Dhanoa lost the job through the notification of the
president
Doordarshan Hindi News Bulletins at 7.30 pm and 8.40 pm with
photos of the two 'removed' Commissioners being flashed on the
TV screen.
CLAIM:
UNILATERAL REMOVAL - THE PROCEDURE
PRESCRIBED IN THE CONSTITUTION NOT
FOLLOWED- ARBITRAY - prejudice
president according to the Art 324
reated the post does has power to
abolish too?
APPONTMENT - CREATION -
REMOVAL ABOLISTION
The post is still existing. something was not exsisting all
person who hold it was removed togeher created it.
Total post itself removed from the
framwork without any traces.
leaving behind of it
Is the constitution of India talk
about abolishmnet ?
DISCUSSION
1. Dhanoa's perspective
2. RULES & REGulation from the
parliament
3. protection to OEC is not as CEC
DETAILED ANALYSIS
POINTER #1
Supreme Court - President has the Power .

POWER TO CREATE ALSO IMCLUDES POWER TO ABOLISH.IF

THEPRESIDENT HAS THE POWER TO CREATE A POST VIA NOTIFICATION IN
1989 THE SAME PRESIDENT HAS VESTED WITH THE AUTHORITY OF
REMOVAL
PRESIDENT CAN DECIDE OVER NO O OEC IN ECI
 Art 324(2) Explicitly not talk
art 324 (2) - about the creation /deletion
of post but it mention " time
"time to time". to time" - periodical review
over the decision taken by the
president himself
Post created is not
perpetuated

power is given even though not directly mentioned

 COUNTER Independency of Election commission

Independence of election commission

-The Chief Election Commissioner ... vs M.R. Vijayabhaskar
The EC has facilitated the operation of our constitutional democracy by
conducting free and fair elections and regulating conduct around them for
over seven decades. Its independence and integrity are essential for
democracy to thrive. This responsibility covers powers, duties and myriad
functions26 which are essential for conducting the periodic exercise of
FA

breathing life into our democratic political space

LL

The EC has a track record of being an independent constitutional body which

IN

shoulders a significant burden in ensuring the sanctity of electoral

G

democracy.
AC
T
IO
N

RESOLUTION
 Power to create include
power to destory

IS President has too

much discretion power ?
RESOLUTION
DISTINCTION - NOT ON PAR
CEC EC
wide discretion power
Presidents discretion however, the same
power is less constitutional provision is silent
removal needs about the procedure for removal
Impeachment as of Sc of the two Election
judge Commissioners. It only provides
cumbersome procedure . that they cannot be removed
from office except on the
recommendation of the CEC.
 a protection is given to the Chief
Election Commissioner in that his
conditions of service shall not be
varied to his disadvantage after his
appointment, and he shall not be
removed from his office except in like
manner and on the like grounds as a
judge of the Supreme Court. These
protections are not available either
to the
Election Commissioners

H
Naturally clear distinction they can not
same treatment as CEC. - Intention of
the constitution is clear

appointment of the other Election

Commissioner or Commissioners is
not obligatory. The number of other
Election
Commissioners is left to the discretion
of the President Depending upon the
need felt from time to time.
permanent incumbent - No ECi
Without CEC

There is no ECI of without CEC

Article 324(2) creates an obligation that the
Election Commission shall consist of the Chief
Election Commissioner, as regards the
appointment of the other Election
Commissioners and their number, the matter is
left, without any limitation, to the discretion of
the President.

"THE" - CEC "SHOULD"

eG. it OFFFICER - APELENT TRIBUNAL -
intellectual PROPERTY TRIBUNAL

25 vacancies in the Railway Claims Tribunal,

while National Green Tribunal has 30 and
Central Administrative Tribunal has 32
vacancies. The National Company Law
Tribunal has a total of 33 vacancies. The
Armed Forces Tribunal, the nodal body for
resolving disputes within the armed forces, has
23 vacancies in tota
 Note

once the CEC is

a vin g - im m e d ia tely
le
ne x t CE C h a v e to
the
come to power
There is no single
en t w ith ou t C E C
mom
a s n o t t h e c as e
This w
with OEC
PRIMUS INTER PARES -
first among equals
CEC Superior over EC

Doubts :
1. Appointment itself arbitrary - Tn Seshan -
Attack on independence by additional of
two more officers - Two way arguments
2. facts and circumstances of th case-
political condition
3. about to happen- Impedi status of
Panchayat Raj and Nagar Palika Bills
REFERENCES
FRAMEWORK OF CONSTITUTION - APPOINTMENT
ON THE VIRTUE OF MORE WORK

MORE HEADS THAN ONE IN A BODY - OBITER

INDEPENDENCE DEPENDS UPON PERSON IN

POWER NOT IN NUMBER
WORK FOR PEOPLE VS FOR GOVERNMNET
CEC is superior - it is a verdict of the
court
the question is is he is superior all the
time - or on certain aspect point of
debate - TN sesan case - Judicial
power of EC or day to day affairs'
Thank you
Presented on: Feb 21st, 2022
Presented by: Aditi Mehta
 Continuation of the Dhanua Case
◦ Policy decision
◦ Service Law Jurisprudence
◦ Obiter
 TN Seshan Case
◦ Political Background
◦ Election Commissioner’s Act
◦ Issue
 Policy- Do you want 1 or 3 persons?
 Govt- Not removing you from the post, the
post itself is getting abolish.
Does not hold
◦ Service condition violation ground, as President
◦ Arbitrarily removed has the powers.

 SC: President has the final authority to have

or not have ECs, this wisdom cannot be
questioned
 Service Law Jurisprudence: Have a claim, if
illegally removed from the post. But the post
itself deleted so no claim.

 Obiter: It is always better to have more heads

than one.
 Political Background: It was in 1989 ECI had
decided for 1->3, within a year reverted.
 1993-94: Govt changed, TN Seshan- CEC
(‘90)
 Plethora of reforms, extremely neutral, not in
god books of govt.
 Merely exercising his independence, wanting
less govt interference
 To dilute his powers, 2 people appointed as
ECs
 Initially passed as ordinance, Chief Election
Commissioner and other Election
Commissioners (Conditions of Service)-
>..(Condition of service and Transaction of
business)
 Conditions of Service: Salary, qualifications,
retirement age, eligibilty for re-appointment,
status (eq to SC judge?)
 Transaction: Admin w of forum on a day to
day basis. What happens if diff opinion? All
same w?
 Og version: Clear cut classification, CEC senior
post
 No concept of primus intes peris as dy/dx b/w
CEC and OEC
 Other pov- If did not talk about condition of
business, that is how they act in quasi-judicial
authority, so when taking the decision, you
cannot say who is superior and who is not.
 Changes:- Title, Abolishing different conditions
of services (same retirement age of 65, all of
them will get same status- considered that of a
SC Judge)
 Sec3,8- shows CEC and OEC at par with SC Judge
 After making these amendments, CEC=OEC,
all get equal decision making power.
(Sec9,10,11)
 The removal for CEC is different from OEC in
the Constitution, so now are you going to
amend the constitution?
 Sec 10(2)- unanimously- As far as possible,
there shouldn’t be a diff opinion.
 Sec 10 (3)- majority- numerical majority
 Whether 1991 Act Ultra Vires?
 Independence
ELECTION LAWS
CLASS
PRESENTATION
T. N. SESHAN CASE DISCUSSION

ARAVIND A S
BA0180006
 T. N. • T. N. Seshan, CEC Vs. Union of India and others-
14.07.1995.

Seshan • Decided by the Supreme Court Constitutional Bench.

• Came after the Dhanoa case (1991).
Case- 1995 • Far-reaching constitutional issues were involved in the
case.
• Judicial Review (Art. 32 application)of
1. Constitutional Provisions- Article 324.
2. 1991 Election Commissioners (Conditions of Service of
Election Commissioners and Transaction of Business)Act
of 1991.
 Other Point • 3. Review of 2 Presidential Notifications for
appointment of two more election commissioners-

of view- Reason: Government thought the single EC was

holding too much powers- appointed Gill and

Government’s Krishnamoorthy.
• If there is only one EC- the person becomes the centre

Idea of power- could become an autocrat.

• The person becomes synonymous with the authority.
• The autonomy of the Election Commission is
compromised.
• To prevent unofrotunate circumstances- the
government used the constitutional provisions to
convert the EC from single-member body to Multi-
member body.
T. N. Seshan • The Supreme Court rejected the petition filed by Mr.
Seshan.

Case- Court’s • Held- there is nothing wrong in appointing additional

ECs.

Final Verdict • There exists no error in the 1991 Act.

• Under art. 324, the Constitution of Election
Commission is detailed.
• Mr. Seshan challenged that the 1991 law was
amended- it is unconstitutional.
• The amendment- Introduced a chapter for conducting
the business of the Election Commission.
• In the original act, CEC- SC Judge, OEC- HC Judge.
• CEC- 65 years retirement age, OECs- 62 years
retirement age.
 1991 • After amendment- CEC and the OECs are treated
equal.

Amendment • All ECs are in the level of a Supreme Court judge, with
same retirement age.

- Issues • Seshan alleged that the government was trying to

raised by
interfere and intermeddle with the autonomy of the
Election Commission.

Mr. Seshan • Mr. Seshan questioned why suddenly two other

Election Commissioners are appointed?- Quoted the
Dhanoa verdict(which stated that 3 ECs can be reduced
to one EC).
Supreme • The SC held that- The number of election
commissioners does not matter.

Court- • If the act is setting up detailed procedure for the

activities of the Election Commission- There is nothing

Number wrong.
• Mr. Seshan argued- The Constitution allows for
does not appointment of CEC and OEC- But OEC are only

matter
discretionary- not mandatory.
• After Dhanoa Case- SC Said single-member
commission is acceptable.
• Mr. Seshan- A multi-member EC is unworkable.
• By 1991 Act- CEC position is equated with the OEC-
Isn’t it unconstitutional?
Constitution • The Constitution makes it difficult to remove the CEC-
by impeachment proceedings- like a Supreme Court

al judge.
• But removal of OEC-much easier- implying the CEC is

Amendment higher than the OEC.

• But, the statute amended as of now violates the
constitution.
• So, to make the CEC and the OEC equal, should the
Constitution be amended?
• The Union of India argued that-Whatever is given
under art. 324(5), it is just removal proceedings, in
which the CEC is equal to the Supreme Court Judge.
But, it does not mean that the CEC is equal to the
position of a Supreme Court judge in all aspects.
 S. S. • Para 8:
• “8. There is no doubt that two heads are better than

Dhanoa Vs. one, and particularly when an institution like the

Election Commission is entrusted with vital functions,

Union of and is armed with exclusive uncontrolled power to

execute them, 'it' is both necessary and desirable that

India, 1991 the powers are not exercised by one individual,

however, all-wise he may be. It iII-conforms the

AIR 1745 tenets of the democratic rule. It is true that the

independence of an institution depends upon the
persons who man it and not on their number.”
• The paragraph was quoted by the SC in the T. N.
Seshan Case.
 ECI- • “From the discussion upto this point what emerges is
that by clause (1) of Article 324, the Constitution-

Authority, makers entrusted the task of conducting all elections in

the country to a Commission referred to as the Election

not a person Commission and not to an individual. It may be that if it

is a single-member body the decisions may have to be
taken by the CEC but still they will be the decisions of
the Election Commission.”
• Supreme Court- there is a mistaken equivalence of
considering the CEC as the ECI- There is nothing
erroneous in having multi-member ECI.
• CEC- present to ensure orderly functioning of the ECI.
 CEC- Not • The Supreme Court held- CEC is not the ECI.
• CEC is just “Primus inter pares”- First among equals.

Superior to • What about the Regional Election Commissioners?

the OEC • They are not a part of the ECI- Only appointed to assist
the ECI.
• The Supreme Court held- CEC, 1st OEC, 2nd OEC are
equal.
• What is the purpose of Art. 324(5)?
• Why CEC is equated to a SC judge- for removal
proceedings?
• Article 124 of Constitution- Impeachment proceedings
of a judge.
 Article 124- • Article 124- Impeachment process of judge- the
Constitution used terms such as “incapacity”, “proved

constitutional misbehaviour”.
• Constitutional Assembly Debate- CEC should be free

Debates from political interference- So, the removal process

should be hard.
• Why the other ECs was not allowed the same
impeachment process- since they also should be free
from political interference.
• Since CEC is permanent- removal procedure is placed.
• Dhanoa case- OEC position is not obligatory.
We begin with the TN Seshan Judgment
Verdict in the TN Seshan judgment:
The reasoning adopted by the constitutional bench of the court
We observe that ever since this judgment the panel of the EC is a 3 member panel,
initially it was 1, in dhanoa 1 was challenged to have 3, and then TN seshan
challenged for having 3 was challenged having 1 was enough as CEC was most
important and finally after the TN Seshan judgment it was ruled that 3 member
panel is important.

1989- 1 member
1989-1995-Issues wrt the number was going on and eventually, having a multi
member panel is constitutionally valid.

The question was “How can the other members of the panel be removed?”

According to 324(5), the recommendations and permission of the CEC, the

president can after inteliigible and cogent considerations remove them. Although
these terms are not in the text of the article, it was held in the TN Seshan judgment.

This is a sort of a test for valid removal of the members,

The scheme of Article 324 in this behalf is that after insulating the CEC by the first
proviso to clause (5), the ECs and the RCs have been assured independence of
functioning by providing that they cannot be removed except on the
recommendation of the CEC. Of course, the recommendation for removal must be
based on intelligible, and cogent considerations which would have relation to
efficient functioning of the Election Commission. Intelligible, Cogent
Considerations cannot be the personal whims of the CEC but has to be a valid
reason in furtherance of the efficient functioning of the ECand that the

That is so because this privilege has been conferred on the CEC to ensure that the
ECs as well as the RCs are not at the mercy of political or executive bosses of the
day. It is necessary to relise that this check on the executive's power to remove is
built into the second proviso to clause (5) to safeguard the independence of not
only these functionaries but the Election Commission as a body.

If, therefore, the power were to be exercisable by the CEC as per his whim and
caprice, the CEC himself would become an instrument of oppression and would
destroy the independence of the ECs and the RCs if they are required to function
under the threat of the CEC recommending their removal. It is, therefore, needless
to emphasise that the CEC must exercise this power only when there exist valid
reasons which are conducive to efficient functioning of the Election Commission.
This, briefly stated, indicates the status of the various functionaries constituting the
Election Commission.
Question 2: Whether RCs are a part of the Election Commission of India

The judgment says probably not as these are ad hoc positions and they are
appointed on recommendation of the entire ECI and not just the CEC.

The reason is the tenure, salaries, allowances and other perquisites of the CEC and
ECs had been fixed under the Act as equivalent to a Judge of the Supreme Court
and the High Court, respectively. This has undergone a change after the ordinance
which amended the Act to place them on par. However,the proviso to clause (4) of
Article 324 says (i) the CEC shall not be removed from his office except in like
manner and on the like grounds as a Judge of the Supreme Court and (ii) the
condition of service of the CEC shall not be varied to his disadvantage after his
appointment.

These two limitations on the power of Parliament are intended to protect the
independence of the CEC from political and/or executive interference. In the case
of Ecs as well as Rcs the second proviso to clause(5) provides that they shall not be
removed from office except on the recommendation of the CEC. It may also be
noticed that while under clause (4), before the appointment of the RCs,
consultation with the Election Commission (not CEC) is necessary, there is no such
requirement in the case of appointments of ECs. The provision that the ECs and the
RCs once appointed cannot be removed from office before the expiry of their
tenure except on the recommendation of the CEC ensures their independence. The
idea is we have to keep the executive and political forces at bay.

An OEC is a full-time post hence this principle of the RC does not apply to OEC.
There is a concept of a Primus Inter Pares, wherein some equals are still higher
than other equals. While OEC is secondary to the CEC, the nature of their power is
not that as secondary of the RC and even in the past, there have been conflicts of
the RCs with the CEC wherein RCs fear being overpowered and not take up bold
actions but giving a power almost equivalent to that of the CEC to the OEC is only
going to ensure there is no arbitrariness. The permanent incumbent as in the
Constitution is the CEC but it has changed over time and there is no way we are
reverting to just 1 commissioner.
The removal procedure alone is not particular just the law making powers of the
parliament as it will dilute the powers of the EC so that is why the procedure is
something as rigid as the removal of a judge in the SC.

TN seshan case is a ratio that is held in the above propositions but there is one area
where it is not settled.

That is Transaction of Business:

How does ECI function on a daily basis?
How are the powers allocated differently?
Is it possible to just run it smoothly with 3 members and RCs?

The Constitution of India does not talk about the functioning of the EC. This
means that the drafters of the Constitution are just describing the role of the ECs,
and a higher stature position will mean, the person in position will have higher
integrity and credibility. So, the functioning was left to the parliament.

For example, take the functioning of Admin Tribunals,quasi judicial bodies, are the
rules detailed and given verbatim, or are they given just a plain guidance to follow
“the Principles of Natural Justice”
PNJ are generally asked to be followed but rules are also given in specific cases
like CCI, RBIetc.
So similarly instead of generally assuming that the people in higher positions will
know what they can and must do and exercise their powers diligently, there is
ahigh scope of conflict in that case as well which needed to be avoided. Hence it
was decided that a detailed rules were needed.
Till 1993 the provisions on transaction of business were not decided. The general
idea that in a multi member commission, decisions have to be taken unanimously.
All of the members have to agree to make one decision. However, it is not prudent.
Hence, the next principle is that of the rule of majority. This is a numerical
majority and not that of status. A simple 2:1 majority will do.

Seshan was again and again trying to narrow down on dominance of rank. So,
Unhappy with Seshan asserting the Commission’s independence, the Congress government

headed by P V Narasimha Rao decided to expand the ECI again on October 1, 1993. M S Gill

and G V G Krishnamurthy were appointed ECs. Simultaneously, The Chief Election

Commissioner and Election Commissioners (Conditions of Service) Act, 1991 was amended by

an Ordinance. The name of the law was changed to The Election Commission (Conditions of

Service of Election Commissioners and Transaction of Business) Act, 1991. The government

made the CEC and the ECs equal by giving all three the status of a Supreme Court judge, retiring

at the age of 65 years. So, In other words, all three Commissioners now had equal

decision-making powers. Now going back to transaction of business, a new chapter titled

‘Transaction of Business’, containing Sections 9, 10 and 11, was introduced in the Act. These

three sections envisaged that the CEC and the ECs would act in such a manner that there was

unanimity in their decision making and, in case there was any difference of opinion on any issue,

the majority view would prevail.

Seshan moved the Supreme Court, alleging that the three provisions were an attempt by the

government to curtail his powers. Seshan challenged this as well.-”Constitution is not

permitting the legislature to make legislations for the transaction of biz of the ECI

and hence, if the law as such is made, it is ultra vires”.

However, this argument was dismissed by the Supreme Court as the parliament is

going out of its limited powers and overriding its power. It is only when the CEC and
the ECs cannot reach a unanimous decision in regard to its business that the decision has to

be by majority. It must be realised that the Constitution- makers preferred to remain silent as

to the manner in which the Election Commission will transact its business, presumably

because they thought it unnecessary and perhaps even improper to provide for the same

having regard to the level of personnel it had in mind to man the Commission. They must

have depended on the sagacity and wisdom of the CEC and his colleagues. So, the

lawmaking power of the legislature can be simply said to be just giving a

suggestive direction that “Try achieving unanimity and in the chance of

practicality, it is not possible, resort to majority view as this is what is the norm in

any odd member tribunal.”

255th report of the Law Commission of India-March 2015

Law Commission’s report on Electoral Reforms- Chap VI

 CLASS REPORT - TRANSACTION OF BUSINESS 02/24/2022

CLASS REPORT

Date: 27.02.2022 13 th Session

TOPIC: TRANSACTION OF BUSINESS

A. RESOURCE PERSON
Mr. S. Mohammed Azaad, Assistant Professor of Law, Tamil Nadu National Law University-
TNNLU, Tiruchirappalli, Tamil Nadu.

B. PRESENTER
Ms. Swesthiga. K, Fourth year Student, B.com. LL.B.(Hons.), BC0180052, Tamil Nadu
National Law University-TNNLU, Tiruchirappalli, Tamil Nadu.

C. CONTENTS OF THE CLASS

The class was started at 12.35 p.m. and ended by 01.35 p.m. Cisco WebEx app - an online
video conferencing platform. The contents of the class were:
✓ Revisiting the transaction of business - Chapter III (Sections 9 & 10) of the 1991 Act.
✓ Powers of independence of election.
✓ How are the powers can be distributed in the three-member commission?
✓ What are the kinds of business the Election Commission does?
✓ One person alone is difficult to do all the task and needs subordinate officers - Who are
these people and how the work will be divided?
✓ What is the nature of powers?
✓ Transaction of business - regulatory authority or constitutional authority or regulatory
body - What kind of powers can be exercised?

Under the transaction of business there will be regulatory authority or constitutional authority
or regulatory body. As we already know that, the regulatory body can act as 3 in 1 body - it can
exercise as legislative or administrative or judicial powers. The examples for each power are
given below.

SWESTHIGA. K - BC0180052 1
 CLASS REPORT - TRANSACTION OF BUSINESS 02/24/2022

LEGISLATIVE POWERS ADMINISTRATIVE JUDICIAL POWERS

POWERS

Symbol order (allotment and Preparation of electoral Disputes on who will get what
allocation of symbol for rolls for every election. symbols between the parties.
political parties) (quasi-
legislative exercise)

All these three kinds of powers are predominant. One function can be taken as dominant
function, another one is secondary function because of Separation of Power as it concentrates
on all kinds of powers on the hand of one single individual. Also, Montesquieu stated, “the
powers should be equally distributed and not in the hands of few”. There are also checks and
balances that’s we cannot say that all powers should be compulsorily divided and this will lead
to overlap. Some Regulatory bodies like ECI will do all the powers in a combined manner
because they write the law, conduct inquiry, impose penalty, etc. Only in this case the function
will be primary or predominant or main whereas other function will be quasi in nature.
Here, an issue arises that is, how the powers will be decided?
For the above issue, we can refer to the case of Mohinder Singh Gill and Anor v. Chief Election
Commissioner and Ors 1. In this case, the petitioner and the third respondent were candidates
for election in a Parliamentary constituency. On the basis of multiple complaints, the Election
Commission ruled the election in the Firozpur parliamentary constituency in the state of Punjab
to the House of People as invalid. The petitioners argued that under the legislation, the EC
could only order a new election at polling stations where the previous election was reportedly
manipulated, not across the entire parliamentary seat. At the last stage - at the time of counting
of votes there was mob riot and ECI ordered for fresh polling.
ISSUES
➢ Whether the EC can cancel the election completely?
➢ Whether ECI has the power to order for fresh polling?
➢ If there is such kind of power, whether there is any constitutional provision for it?
➢ What kind of power is it?

1 AIR 1978 SC 851

SWESTHIGA. K - BC0180052 2
 CLASS REPORT - TRANSACTION OF BUSINESS 02/24/2022

SC’s DECISION
The petitioners’ argument was dismissed by the Supreme Court. Article 324 is a declarative
clause that vests the whole responsibility for national and state elections in the Election
Commission, as per a constitution bench of the Supreme Court. Article 324 appears to provide
the Commission powers and responsibilities, including administrative and marginally even
judicial, or legislative functions. Such function can either include powers or duties of election
commission. ECI is primarily an executive body and its primary functions are executive or
administrative in nature. So, they are only secondary function. For example: How to prepare
electoral rolls, conduct of process of elections, etc. So, whatever the nature is, the ECI will rule
the functions in a unanimous manner with the help of chapter 3 of the 1991 Act and article 324
of the Indian Constitution and there shouldn’t be multiple voice. If a conflict arises the majority
will overcome and this will apply to all types of functions in ECI.

DEPUTY ELECTION COMMISSIONER (DEC)2:

Article 324 does not talk about DEC and they are more like officers of EC to decide how many
subordinate officers you need. DEC is not a sanctioned post. For Example: in our university,
to support the registrar we have deputy registrar, academic registrar, in some cases more than
one deputy registrar or academic registrar will be there. So, it is a post on people where they
are appointed according to needs of the ECI. But these people are not good enough to entirely
complete the election process. ECI needs the help of all these people. When the new ca se comes
up, it will go to the level of CEC itself. Like DEC, Director General, etc you will have multiple
divisions in the ECI. For example, communication division3. Then the case will go to respective
division for example the secretariat of ECI. So, the ECI has come up with the concept of Full
commission meeting. For example, in the administrative matter if the case must be detail
everyone will attend like DG, EC all of them will attend together and it is a quasi-judicial kind
of power. At the end these people’s decision are suggestive and advisory in nature and may not
be fully binding. Only CEC, Other EC can take decision unanimously. Under delegation they
won’t delegate the decision-making power and they will delegate with the help of other people.
For example: if a poll violence happens, they will appoint Deputy Election Commissioner to
investigate and ask to submit the report. Then ECI will look into it and when the report is true,

2 https://eci.gov.in/contact-us/directory/
3 https://eci.gov.in/divisions-of-eci/communication/

SWESTHIGA. K - BC0180052 3
 CLASS REPORT - TRANSACTION OF BUSINESS 02/24/2022

they will approve. The final decision will be taken by these three persons alone. The parliament
gives ECI the power to regulate the business under the 1991 Act.

DISSENTING OPINION:
Under the dissenting decision, for example, when the three Election Commissioners dissent
their decisions, whether the dissenting opinion can be displayed to the general public and
whether the copy of dissenting opinion case could be given to the parties? - this is considered
to be a grey area. When there is difference of opinion - whether it is 2:1 or 4:1 ratio case they
will agree with one of the decisions and also write their own opinions. Under constitutional
perspective everything should be public. Whenever there is diff erence of opinion, the
dissenting opinion will not come at all. Majority opinion alone will be given to the public. Here
comes the question, what will be the procedure in this case? Whether the dissenting opinion
should be included in the final judgement same like done by the Supreme Court and High
Courts? - for this, under the freedom of expression and the fundamental right to know all the
decisions should be given to the public and nothing should be hidden and parties have the right
to know. Also, it can be helpful for the parties in preparing the appeal. Even appellate authority
may rely upon dissenting opinion. So, nothing can be hidden and everything will be displayed.
Now, comes the question, If the dissenting opinion is not made public, can a person claim it
under Right to information?

D. CONCLUSION
The Professor concluded the class by telling us to look into the two case studies. First one is,
Ashok Lavasa 4 case where he gave dissenting opinion regarding the issues in the elections in
the cases of PM Modi, Home Minister Amit Shah and BJP leaders. Another case is, in the year
2009, Dissenting opinion was given by the then Chief Election Commissioner Gopalaswami5
and the issue was on whether the Congress President Sonia Gandhi should be disqualified from
the MP post or not?

4 Neerad Pandharipande, Ashok Lavasa’s demand to make dissent note public is critical to natural
justice, transparency and strengthening democratic institutions, Firstpost, 22nd May, 2019.
5 https://indiankanoon.org/doc/196453242/ , https://timesofindia.indiatimes.com/india/gopalaswami-

retires-on-a-controversial-note/articleshow/4426792.cms

SWESTHIGA. K - BC0180052 4
 CLASS REPORT - TRANSACTION OF BUSINESS 02/24/2022

E. METHOD OF DELIVERY
The method of delivery by the professor was lecture based and discussion method. Debate was
also conducted by the professor to understand the opinions from different students for better
understanding.

F. TEACHING AIDS USED

The professor shared few links from the Election Commission of India website for better
understanding. Additionally, detailed discussions were initiated by means of questions.

G. INTENSITY OF INTERACTION
The class was informative and interactive. During the lecture, few students raised their
questions and arguments with regard to the subject.

H. RELEVANCY AND USEFULNESS OF THE SESSION TO PARTICIPANTS

The class was very insightful and gave a clear understanding and knowledge to all the
participants like the concept of ‘Powers under the transaction of business’, ‘Role of Deputy
Election Commissioner’, ‘Full Commission Meeting’ and ‘Dissenting Opinion’.

I. MCQ’s
1) When the mob riot happened in the Mohinder Singh Gill case?
a) At the time of result b) At the beginning of election c) At the time of counting (votes)

2) Who gave the dissenting opinion in the cases of PM Modi, Amit Shah and other BJP
leaders?
a) Gopalaswami b) Ashok Lavasa c) Sonia Gandhi d) Rahul Gandhi

3) Who gave the dissenting opinion in the case of Congress President Sonia Gandhi, whether
she should be disqualified from the MP post or not?
a) Gopalaswami b) Ashok Lavasa c) Amit Shah d) Narendra Modi

4) The parliament gives ECI the power to regulate the business under the ________.

SWESTHIGA. K - BC0180052 5
 CLASS REPORT - TRANSACTION OF BUSINESS 02/24/2022

a) The Election Commission (Conditions of Service of Election Commissioners and

Transaction of Business) Act, 1993
b) The Election Commission (Conditions of Service of Election Commissioners and
Transaction of Business) Act, 1991
c) RTI
d) The Election Commission (Conditions of Service) Act, 1991

5) Which Chapter of the 1991 Act relates to the transaction of business?

a) Chapter I b) Chapter II c) Chapter III

J. DESCRIPTIVE QUESTIONS
1) Question: What is the role of the Deputy Election Commissioner (DEC)?
Answer - DEC is not a sanctioned post. For Example: in our university, to support the
registrar we have deputy registrar, academic registrar, in some cases more than one deputy
registrar, etc will be there. It is a post on people where they are appointed according to
needs of the ECI. But these people are not good enough to entirely complete the election
process. ECI needs the help of all these people. When the new case comes up, it will go to
the level of CEC itself. Like DEC, Director General, etc you will have multiple divisions
in the ECI. Under delegation they won’t delegate the decision-making power and they will
delegate with the help of other people. For example: if a poll violence happens, they will
appoint Deputy Election Commissioner to investigate and ask to submit the report. Then
ECI will look into it and when the report is true, they will approve. The final decision will
be taken by these three persons alone and DEC’s decision will be suggestive/advisory in
nature.

2) Question: Whether the petitioners’ argument was accepted by SC in the Mohinder Singh
Gill case?
Answer - No, the petitioners’ argument was dismissed by the Supreme Court. Constitution
bench of the Supreme Court held that, Article 324 is a declarative clause that vests the
whole responsibility for national and state elections in the Election Commission of India.
Article 324 appears to provide the Commission powers and responsibilities, including

SWESTHIGA. K - BC0180052 6
 CLASS REPORT - TRANSACTION OF BUSINESS 02/24/2022

administrative and marginally even judicial, or legislative functions. Such function can
either include powers or duties of election commission. So, whatever the nature is, the ECI
will rule the functions in a unanimous manner with the help of chapter 3 of the 1991 Act
and article 324 of the Indian Constitution and there shouldn’t be multiple voice.

3) Question: What happens when the difference of opinion occurs within the Election
Commissioners?
Answer - Whether it is 2:1 or 4:1 ratio case they will agree with one of the decisions and
also write their own opinions. Under constitutional perspective everything should be
public. Whenever there is difference of opinion, the dissenting opinion will not come at all.
Majority opinion alone will be given to the public.

SWESTHIGA. K - BC0180052 7
CLASS REPORT – DISSENTING OPINION IN THE ELECTION COMMISSION 01.03.2022

CLASS REPORT
Date: 01.03.2022 Session: 1st hour on 01.03.2022

TOPIC: DISSENTING OPINION IN THE ELECTION COMMISSION.

1. RESOURCE PERSON:
Mr. S. Mohammed Azaad, Assistant Professor of Law, Tamil Nadu National Law
University (TNNLU), Tiruchirappalli, Tamil Nadu.
2. RAPPORTEUR:
Mr. O.R. Gokul Abimanyu pursuing 4th year BA.LLB (Hons) in Tamil Nadu National
Law University, Tiruchirappalli, Tamil Nadu.
3. CONTENTS OF THE SESSION:
The class started at around 8.30 AM and continued till 9.30 AM on 01.03.2022. The
following are the topics that have been discussed in the class,
• Analysis of Article 103 and Article 192 of the Indian Constitution
• Case study of Sonia Gandhi’s Disqualification case.
• Subramanian Swamy vs. Election Commission of India and another
• Administrative power vs. Judicial power.
3.1. ANALYSIS OF ARTICLE 103 AND ARTICLE 192 OF THE INDIAN CONSTITUTION:
The resource person had started the class with critically analysing the Articles 103 and
192 of the Indian Constitution.
3.1.1. Disqualification of the Members of the Parliament:
The resource person had discussed the Article 103 of the Indian Constitution. Article
103 of the Indian Constitution reads as follows,

“(1) If any question arises as to whether a member of either House of Parliament has
become subject to any of the disqualifications mentioned in clause (1) of article 102, the
question shall be referred for the decision of the President and his decision shall be final.
(2) Before giving any decision on any such question, the President shall obtain the opinion
of the Election Commission and shall act according to such opinion.”
On perusal of the Article 103(1) of the Indian Constitution, the President can decide as
to any question arising out as to whether any Member of the Parliament has become subject to
disqualification under Article 102(1) of the Indian Constitution which has listed out certain
grounds for disqualification. Article 103(2) of the Indian Constitution implies that before
deciding on any question as to the disqualification of the Members of the Parliament, it is

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CLASS REPORT – DISSENTING OPINION IN THE ELECTION COMMISSION 01.03.2022

mandatory for the President to obtain the opinion of the Election Commission and the President
has to act according to the opinion of the Election Commission.
First, the question of disqualification has to be referred to the President and the
President has to send the same to the Election Commission for its opinion. When the President
obtains the opinion of the Election Commission, he/she has to act according to the opinion of
the Election commission. From this, we can imply that though the Article 103(1) states that the
decision of the President is final, it is the opinion of the Election Commission which the
President relies upon.
3.1.2. Disqualification of the members of the State legislative assembly
Then the resource person moved on to discuss Article 192 of the Indian Constitution.
Article 192 of the Indian Constitution states as follows:
“(1) If any question arises as to whether a member of a House of the Legislature of
a State has become subject to any of the disqualifications mentioned in clause (1) of Article
191, the question shall be referred for the decision of the Governor and his decision shall be
final.
(2) Before giving any decision on any such question, the Governor shall obtain the opinion
of the Election Commission and shall act according to such opinion.”
According to Article 192(1) of the Indian Constitution, the Governor can decide as to
any question arising out as to whether any Member of the State Legislature has become subject
to disqualification under Article 191(1) of the Indian Constitution which has listed out certain
grounds for disqualification. Article 192(2) of the Indian Constitution implies that before
deciding on any question as to the disqualification of the Members of the State Legislature, it
is imperative for the Governor to obtain the opinion of the Election Commission and the
Governor has to act according to such opinion of the Election Commission.
First, the question of disqualification has to be referred to the Governor and the
Governor has to send the same to the Election Commission for its opinion. When the Governor
obtains the opinion of the Election Commission, he/she has to act according to the opinion of
the Election commission. Here also, it is the opinion of the Election Commission which the
Governor relies upon.
3.1.3. Distinction between Article 103 and 192:
After analysing both the provisions, the resource person had brought out the basic
distinctions between both the Articles. There are only two primary differences between the
Articles 103 and 192 of the Indian Constitution. One of the differences is that the former deals
with the disqualification of the Members of the Parliament and the latter deals with the

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CLASS REPORT – DISSENTING OPINION IN THE ELECTION COMMISSION 01.03.2022

disqualification of the Members of the State Legislature. The other difference is that under
Article 103, the authority to decide disqualification is the President and under Article 192, it is
the Governor who decides for the disqualification. The literal interpretation of both these
provisions suggests that the President and the Governor cannot give an opinion different than
that of the Election Commission.
3.2. CASE STUDY OF SONIA GANDHI’S DISQUALIFICATION CASE:
The resource person had brought our attention to the Sonia Gandhi’s disqualification
case. When Mrs. Sonia Gandhi was a Member of the Parliament, she received an Honorary
Title ‘Grand Officer of the Order of Leopold’ from the Government of Belgium in November
2006. Mr. Subramanian Swamy and other BJP leaders had referred this matter to the President
that Mrs. Sonia Gandhi by receiving an award from Belgian Government becomes subject to
be disqualified on the ground that ‘she is under acknowledgement of allegiance or adherence
to a foreign state’ [Article 102(1)(d)].
On the basis of the reference made, the President had sent the same to the Election
Commission for its opinion. The Election commission’s opinion was divided in the ratio 2:1
where the majority viewed that Mrs. Sonia Gandhi cannot be disqualified as it is a common
practice to receive honorary awards from the foreign states and even many of the MPs have
received such awards. But the CEC, has opined that he cannot agree with the majority opinion
given. The President had decided as per the majority opinion of the Election Commission and
ordered that Mrs. Sonia Gandhi cannot be disqualified.
3.3. SUBRAMANIAN SWAMY VS. ELECTION COMMISSION OF INDIA AND ANOTHER:
After making the above case study, the resource person took us to the judgment of the
case, Subramanian Swamy vs. Election Commission of India and another. Mr. Subramanian
Swamy dissatisfied by the decision of the President, had approached the High Court of Delhi
stating that the President didn’t follow the procedure in the instant case. But the Delhi High
Court didn’t find any merit in this case and had dismissed the case.
The Delhi High Court, in its judgment quoted the excerpts of the minority opinion given
by the then Chief Election Commissioner in the Sonia Gandhi disqualification case. The
excerpts of the minority opinion implies that further enquiry is required in this matter and ECI
alone cannot decide into this matter. So, he had suggested that the reference can be returned to
the President itself and he pointed out that there is no evidence to show any acknowledgment
of allegiance or adherence to a foreign state.
This gives us a clear picture that even during 2009, the Election Commission had placed
the minority opinion in public and didn’t keep it as a secret document like we had seen in the

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CLASS REPORT – DISSENTING OPINION IN THE ELECTION COMMISSION 01.03.2022

Ashok Lavasa’s case. So, it is to be made clear that the dissenting opinion can be made
available to the general public.

3.4. ADMINISTRATIVE POWER VS. JUDICIAL POWER:

Finally, the resource person asked if such role played by election commission is judicial
in nature or administrative in nature. For the purpose, the research person had directed us to
look into this question from two perspectives. To answer these questions, we have to be clear
with the difference between Quasi legislative, quasi-judicial and quasi administrative functions
and the difference between Legislative, administrative and judicial functions.

4. CONCLUSION:
At the end of the class, the resource person had raised an important question i.e., What
is the test to determine if a body exercises administrative power or a judicial power? The
students have given their varied answers and also recollected their memories from the
Administration law and the Competition Law classes to answer this question. In conclusion,
the resource person had asked the students to refer to the case of National Securities
Depository Limited vs. Security Exchange Board of India to know the tests applied to know
whether a body exercises administrative power or a judicial power. The Question whether
Election Commission exercises Administration function or quasi-judicial function remains
unanswered in this class and would be answered in the next session.
5. METHOD OF DELIVERY:
The resource person has used the lecture and discussion method primarily throughout
the class.
6. TEACHING AIDS USED:
This class has been conducted virtually through the Cisco Webex platform. Relevant
links and documents for our reference has been sent by the resource person through Whatsapp
and through the chat box in the Cisco Webex platform. Throughout the class, discussions were
initiated by the resource person by questions.
7. INTENSITY OF INTERACTION:
The class happened virtually but it doesn’t feel so. This is because the class was very
much interactive and most of the students have shared their views and perspectives on the
questions asked by the Resource person. The session was effectively taken forward by the
resource person and his lecture provoked the students, especially me to take part in discussions
in the class. Students have shared the knowledge acquired by them in the Administration and
Constitutional Law classes. Therefore, the class was very much interactive and interesting.

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 CLASS REPORT – DISSENTING OPINION IN THE ELECTION COMMISSION 01.03.2022

8. RELEVANCY AND USEFULNESS OF THE SESSION TO PARTICIPANTS:

The class on the topic ‘Dissenting opinion in the Election Commission’ was interesting,
useful and insightful because the class was majorly dealing with the case study of Mrs. Sonia
Gandhi’s disqualification case. This topic would be very much interesting to those who follow
and are interested in ‘Politics’. And so, I found the class very much relevant and interesting.
As law students, every other student might also find this discussion very much useful,
interesting and insightful. As the question raised in the class remains unanswered, it would
induce many to research on the question and find an answer for the same.
9. MCQ’S:
i. Which of the following provision in Indian Constitution empowers the President to
disqualify the Members of the Parliament?
a. Article 102
b. Article 192
c. Article 103
ii. Is it true that the President/Governor has to mandatorily reflect the opinion of the Election
Commission with regard to the disqualification of members?
a. Yes
b. No
c. May be
iii. Which one of the following is not the ground for disqualification of members of the
Parliament/State Legislative Assembly?
a. If he/she is disqualified by or under any law made by Parliament.
b. If he/she is an undischarged insolvent.
c. If he/she violates the Moral Code of Conduct.
iv. Which among the following grounds under which Mrs. Sonia Gandhi had been challenged
for disqualification for receiving Honorary award from Belgian Government?
a. For holding office of profit
b. She is so disqualified by or under any law made by the Parliament
c. She is under any acknowledgment of allegiance or adherence to a foreign state.
v. Article 192 deals with
a. Disqualification of the Members of the Parliament.
b. Disqualification of the Member of the State Legislative assembly.
c. Grounds for disqualification of the members of the State Legislative assembly.

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 CLASS REPORT – DISSENTING OPINION IN THE ELECTION COMMISSION 01.03.2022

vi. Whose opinion has to be obtained by the President/Governor before deciding on the
disqualification of members?
a. Chief Justice of Supreme Court/High Court.
b. Election Commission.
c. Chief Justice of India.
10. DESCRIPTIVE QUESTIONS:
i. The President can deviate/disagree with the opinion given by the Election Commission
according to Article 103 of the Indian Constitution. Comment on the statement.

Article 103 empowers the President to make decisions as to any question arising out as
to whether any member is subject to disqualification on any of the grounds stated under Article
102 of the Indian Constitution. But the same Article has mandated the President to obtain an
opinion on the question of disqualification before making a decision. Article 103 of the Indian
Constitution not only mandates the President to obtain opinion but also mandates him act
according to the opinion of the Election Commission. The phrases ‘the President shall obtain
the opinion of the Election Commission and shall act according to such opinion’ makes it
clear that it is imperative for the President to obtain the opinion from the Election Commission
and he/she cannot give a decision contrary to the opinion of the Election Commission. So, the
given statement is false.

ii. What are the grounds for disqualification of the members of the state legislature?
A member of the State legislature can be disqualified on five grounds which are as
follows :-
• if any member of the State legislature is holding any office of profit under the Government
of India or any State
• if he/she is declared unsound by a competent court
• if he/she is an undischarged insolvent,
• if she/he isn’t an Indian citizen, or has acquired the citizenship of a foreign State voluntarily
or if he/she is under any acknowledgement of allegiance or adherence to a foreign State,
• if he/she is so disqualified by or under any law made by the Parliament.

iii. State the procedures for disqualification of members of the State legislature?

According to Article 192(1) of the Indian Constitution, the Governor can decide as to
any question arising out as to whether any Member of the State Legislature has become subject
to disqualification under Article 191(1) of the Indian Constitution. Article 192(2) of the Indian

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 CLASS REPORT – DISSENTING OPINION IN THE ELECTION COMMISSION 01.03.2022

Constitution implies that before deciding on any question as to the disqualification of the
Members of the State Legislature, it is imperative for the Governor to obtain the opinion of the
Election Commission and the Governor has to act according to such opinion of the Election
Commission. Thus in short, first, the question of disqualification has to be referred to the
Governor and the Governor has to send the same to the Election Commission for its opinion.
When the Governor obtains the opinion of the Election Commission, he/she has to act
according to the opinion of the Election commission.
iv. Briefly state the minority opinion given by the Election Commission of India in Sonia
Gandhi disqualification case.
The then Chief Election Commissioner, Gopal Swamy had stated in his minority
opinion that in order to invoke Article 102(1) of the Constitution of India, it has to be shown
that there is an element of allegiance or adherence on the part of the recipient to the country
conferring such award or decoration or even a title. He opined that the petitioner had not come
up with any sort of evidence to back his claim. He further opined that ECI should collect all
relevant information even if necessary suo motu and viewed that carrying out a detailed inquiry
to place matters beyond all reasonable doubt is imperative.

BA0180017- Gokul Abimanyu. O. R 7

 ELECTION LAW CLASS
BRIEFING
Class of 01.03.22 on 03.03.22

Class reporting by: Theerthaa

K S (BC0180054)
 Areas
Discussed

- The nature of ECI and the

nature of the functions it
performs and the kind of
power it possesses - how can
the different kinds of
orders/decisions by the ECI be
classified
Role played by the ECI and
where does it get its
powers?
- Sources of power
- Nature of functions - primary and
ancillary functions
MS Ghill v UOI - Primarily executive;
quasi judicial and quasi legislative
 Court - Pure Judicial Body

Difference between Mandatory set of rules and procedures; Bound by

the rules of evidence

a Court and a quasi Quasi Judicial Body

judicial body Not bound by the rules of evidence - may/can

design their own set of rules and procedure -
guided by the Princinples of Natural Justice

Nature of SEBI in light of the ECI

members of SEBI/SAT; technical members and
judicial members but ECI mostly members from
civil service bacgkround deciding all matters.

Laws relating to ECI

Silent about various aspects
How to distinguish between a Quasi Judicial
Body and a judicial body
NSDL v SEBI - Laid down a three prong test for a body to be purely judicial
The three prong test
01 02 003

Legal Authority Determination of Act judicially

A body that derives
rights of parties apply their judicial minds
power on a legal basis - authority must be able while deciding
by a statute or by the to determine the rights
Constitution and liabilities of parites -
so for this need for a
dispute- dispute arises
from an unsolvable
issue
 admin body passing Judicial body call for
circular - no need to call parties before deciding
for everyone and no and follow set
procedure to follow procedures

Different ways in which an

Admin body does not
administrative body and decide any pending
judicial body decide Judicial bodies decide a
dispute while
pending dispute and
functioning and does
determine the rights of
not conclusively
parties
determine rights
Mr. Ashok Lavasa case - violation of
MCC - small and serious complaints -
whether deciding on such cases is an
administrative or a quasi judicial Ms. Sonia Gandhi case - the disqualification decision -
function of ECI whether quasi judicial or administrative decision-
determination of rights involved - the right to continue
as a member of the parliament
THANK YOU
 ELECTION LAW CLASS REPORT

NATURE OF MODEL CODE OF CONDUCT (MCC) VIOLATIONS

DATE: 05/03/2022

1) RESOURCE PERSON

Mr. S. Mohammed Azaad, Assistant Professor of Law, Tamil Nadu National Law School
(TNNLS) University, Tiruchirappalli, Tamil Nadu.

2) RAPPORTEUR

Dolly Meena, B.A. L.L.B (Hons), Fourth Year (BA0180014).

3) CONTENTS OF THE SESSION

The session started around 12:30 and went on till 1:35 through WebEx Online Platform, by the
essential revolving question around the discussion, which was 'what do we call the proceedings
as , taken after a MCC Violation?

In other words, whenever an MCC violation is happening and subsequently when ECI is
investigating it and passing an order what do we call these entire proceedings as? Are we going
to call them as executive or administrative proceedings or quasi-judicial proceedings.

1) Reason of the discussion of the topic.

2) Background
3) Status of the law on the issue.
4) How to decide the nature of the proceedings.
5) Conclusion.
6) Descriptive questions and MCQ’s.
 ELECTION LAW CLASS REPORT

● REASON OF THE DISCUSSION

In earlier classes, we had a problem whether a minority opinion or dissenting opinion, whether
such an opinion needs to be recorded in the final judgment or not. This is where this all the
debate started

● BACKGROUND

Ashok Lavasa who was one of the Election Commissioners there had a dissenting opinion and
his argument was that such proceedings are quasi-judicial or a semi judicial proceeding in nature.
Essentially because. There are 3 Election Commissioners and when someone files a complaint
or they are taking notice of their own volition like suo moto. They need to evaluate it even if the
complaint is frivolous and have to give a prima-facie opinion as well and after that opportunity
of being heard must be given to both the complainant and the respondent.

But the problem is that there is no set and clear cut procedure here. The EC has various other
functions also and can do anything on its own and follow their own rules provided they are
abided by the principles of natural justice. Therefore, we don't have a very defined procedure. It
looks like there is too much discretion. Therefore the procedure will certainly be different in
different proceedings irrespective of similar facts and legal issues. As ECI has the power to
decide its own procedure and the procedure may vary from one proceeding to another
proceeding.

Even though we saw that, Sunil Arora in one of his press statements said members of the panel
are not supposed to be "clones" of each other and diverges of views are natural.

He even says that when we look into Section 9 and 10 of the Election Commission Conditions of
Service Act, 1991 Act, It just says to try to give a unanimous decision. And Nowhere it is
mentioned or it mandates that a unanimous decision ‘has’ to be given.
 ELECTION LAW CLASS REPORT

● STATUS OF LAW ON THE ISSUE

Hence, we saw that opinions can differ but the issue arises at the part where that very same law is
silent regarding whether the dissenting and minority opinions have to be recorded or not. That is
where the law stops and does not go further and is silent regarding the point of recording
dissenting opinions in case it is given.

One set of people is arguing that this is executive in nature while the other set of people argue
that this is totally judicial in nature, in the sense quasi-judicial.

Moving on, we noticed the constitution and 1991 law does not say anything in this regard but we
sought to find an answer to this riddle.

There is no written or hard and fast rule that one should not recuse themselves, definitely one can
recuse if he or she has a valid reason

In addition, it should be noted that ashok lavasa does not argue that my decision should be
binding or be given weightage but he just says it should be published and should also be read by
the general public.

● HOW TO DECIDE THE NATURE OF THE PROCEEDINGS

Further we saw that in order to answer this particular question first of all we need to come to a
conclusion about what sort of proceedings we are discussing. Whether it is judicial or an
executive?

Probably the answer will lie there, because if there is an executive proceeding, purely executive,
then we may not use that level of scrutiny as we have probably used for a judicial proceedings
 ELECTION LAW CLASS REPORT

because in administrative proceedings they have their own way of writing it. Some people put it
in press notes, some people don't even publish the final order, some people will only publish the
operative portion of the order, they won't even put the entire thing.

The Election Commission of India herein is arguing that their decision is executive in nature, so
during Prime Minister Modi and Amit Shah's provocative speeches case, the 2 members out of 3
gave the opinion that 'MCC' violations are fully executive in nature. There is nothing judicial
about it and therefore they said we don't have to publish it, so therefore this looks like a binding
law from the ECI's point of view.

But, surely the opinions of different people can differ upon this issue.

But the point here is that ECI is not justifying their position, it has not provided any reasons for
the same because of what particular reasons they call it as executive, it merely says 'MCC'
violations are executive in nature, and nothing in support of that.

● CONCLUSION

So as of now the supreme court has not made any clarifications in this regard, nor parliament has
enacted any changes to the 1991 law, they hadn't made any amendments, so as of now these just
can be pointed opinions given by individuals.

The proceedings in very plain reading of it looks like judicial in nature because, as MCC rules
are in a way a quasi legislative exercise, as here they are kind of passing the rules and they
further have to enforce them also, and have to make sure that everyone is diligently following the
mcc, now in case if there is a dispute that whether someone has violated the rules or not, thus
that can only be decided under quasi-judicial proceeding.

They are not here to check merely the validity of law, they are also checking that certain law is in
place and whether someone has violated or not.
 ELECTION LAW CLASS REPORT

When we try to weigh the balances of the number of opinions in this regard generally the opinion
is more in favour of quasi-judicial nature.

Then we observed that, the MCC violation is very similar to d disqualification proceeding, this is
because that in both the cases there is a question of law and question of fact or there is a mixed
question of law and fact, which needs to be decided by applying the judicial minds therefore it
could be said that ECI while deciding these kinds of proceedings, they are definitely only doing
the quasi-judicial work.

IMPORTANT MCQ'S AND DESCRIPTIVE QUESTIONS

Q.1. How to deal with these uncertainties of the nature of proceedings?

We can say that in what kind of proceeding what procedure will be followed is not given here,
and therefore there is a need for a change in the present law, essentially the Election Commission
Conditions of Service Act, 1991 act and Indian constitution or else ECI can also come up with a
certain kind of set procedure here in order to Remove these uncertainties.

Q.2. Can Recusal Happen?

With regard to recusal as of now the law stands silent, but recusal can certainly happen, but
there should also be a procedure for the same. Because we just have 3 members herein and the
law says only majority can decide therefore there should be some clear cut procedure for recusal.

Q.3. Why should the dissent come in public?

When we think it is a judicial proceeding, the dissent has to come out in public now. This is
because under the Constitution we have fundamental right to know, and by virtue of the right to
information act, 2005.
 ELECTION LAW CLASS REPORT

MCQ'S

1. whether the constitution or 1991 law says anything in this regard?

Ans. No. Nothing has been said in this regard.

2. Who was the dissenting person among the three Election Commissioners.

Ans. Ashok Lavasa.

3. Does the constitution provide any minimum corum?

Ans. No.

4. As per the Election Commission of India what is the nature of their decision?

Ans. Executive in nature.

5. Which Section is the Election Commission is invoking to refuse the RTI and keeping the
information secretive.

Ans. Section 8 (1) (g) of the RTI act 2005.

Election Laws – Class
Presentation
- Karen Niroshana, BA0180020
 Removal of Chief Election
Commissioner
 Mode of Removal: Impeachment

 Relevant Provision: Article 324(5) of the Constitution,

Proviso 1.

 Text of Provision: 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.
 Removal of (Other)
Election Commissioners
 Mode of Removal: Recommendation

 Relevant Provision: Article 324(5) of the Constitution,

Proviso 2.

 Text of Provision: Provided that any other Election

Commissioner or Regional Commissioner shall not be
removed from office except on the recommendation of
the Chief Election Commissioner.
Powers of CEC - Background

 Recap of SS Dhanoa v. UOI & TN Seshan v. UOI

 Relevant Points:

1. CEC is a permanent incumbent in the election process.

2. Posts of other ECs can be created, abolished, increased,

or decreased by the President.

3. Therefore, the post of CEC is permanent but EC posts

exist at the pleasure of the President.
 Powers of CEC wrt Removal
of ECs

 According to Article 324(5) of the Constitution, ECs may

only be removed on the recommendation of the CEC.

 Conditions for removal: Recommendation should be

based on cogent reasons and contain an intelligible
differentia.

 As per SS Dhanoa and TN Seshan cases.

 Issues with Procedure for
Removal
 Ambiguity in Procedure

 Two possible methods by which the provision may

operate:

1. CEC takes suo moto cognizance of activities of EC and

makes a recommendation to the president.

2. CEC acknowledges complaint over EC, filed by an

external party such as a political party, individual etc.
 Suo Moto Cognizance

Advantages Disadvantages
 As a Constitutional functionary  Allowing the CEC to take suo
working closely with other moto cognizance of the
members of the Election working of any EC may
Commission, the CEC will be in
the best position to ascertain the result in the grant of a
efficiency/neutrality of the other widespread discretionary
ECs. power to the CEC that could
be liable to misuse.
 Judicial precedent lays down the
prerequisites for a  The procedure for
recommendation – cogent reasons
etc. – that acts as a mode of checks recommendation is vague,
and balances. and there is no proper
mechanism to examine
 No proper mechanism to receive whether judicial precedent
and examine complaints from wrt recommendation
third parties. prerequisites are followed.
 Role of President wrt CEC
Recommendation
Advantages of Binding Advantages of Non-Binding
Recommendation Recommendation

 Prevents the Council of  Non-vesting of complete

Ministers from influencing authority in one
the decision of the individual/office – CEC.
President during review of
recommendation.  Recent Context: Governors
(eg. TN) not acting as per
 Legislative Precedent: Anti- the wishes of the CoM or
Defection Law – Speaker’s the Chief Ministers;
opinion is binding. deviating from
Constitutional
Conventions.
 Case Studies

 Navin Chawla Case: CEC (N. Gopalaswami)

recommended removal of Navin Chawla from post
of EC due to alleged ties to Opposition. Government
rejected the recommendation of CEC. In this case –
recommendation is non-binding.

 Sonia Gandhi Case: Question of disqualification for

holding office of profit – Articles 103 and 192 of the
Constitution. In this case, recommendation of the
ECI was binding.
Thank You
.
MADHUMITHA G
 Whether Suo moto recommendation by CEC to the president is legally
sustainable or not?
Two opinions are possible– one is liberal option
According to liberal opinion ,
No in Art 324(5) – prohibits- Suo moto recommendation- by CEC – to
president.
Not explicitly mentioned- Art 324(5) or in 1991 Law
-- Suo moto reference – not barred
some set of people- says- if it is not barred- then it can be permitted
-- Suo moto – Part of - Quasi judicial , the court have Suo moto powers –
they have power to take cognizance – before the filing of complaint – no
need to wait for the complaint
 Whether the writing of CEC to president is quasi judicial proceeding
ot not?
 Not quasi judicial

--- complaint is filed- investigation must be done- parties should be called-

get opinion from the both.
---- For eg- Navin Chawla case,
In 2006- BJP filed complaint -– against Chawla- biased – favouring the
ruling party
-----should get written/ oral reply from Chawla
-----after- hearing of both the parties- can arrive the conclusion
----- can make recommendation to the president
------ these procedures could have been followed..
 In Gopala Swamy case, None of these procedure- has followed- by CEC
 Its our wish to follow – constitution has not mentionedanything regarding
the procedure
 Gopala swamy – not organized meeting - 3 election commissioners has not
joined together-
 In this case, can exclude Chawla- because- complaint- made- against him
 He should have done earlier- instead – met BJP directly – didn’t get reply-
from chawla.
 Even didn’t include Dr. S.Y . Quereshi – decision
 Entire decision of CEC is unilateral
 Act of Gopala swami –also correct – Art 324 2nd proviso –
recommendation has to come only from CEC – not from ECI- so only
CEC – can involve in – OEC removal.
 Do we have limitation period here within which act upon the
complaint?
In Navin chawla- after 1 and half year – proceedings – initiated

 Whether the Art 324 or is there in 1991 law talks about time limit?
Time limit- has not mentioned

 How shall we say complaint as a Suo moto?

In chawla issue, Gopala swami, Based on his own knowledge-
recommendation – made- to president
 Fact- Gopala swami- initiating proceedings – after 1 and half
years
 Immediately – before his retirement
 In EC, after CEC retirement – OEC – will be given- seniority
 After Gopala swami- chawla – will become CEC – S.Y Quereshi –
2nd position
 Taking Suo moto- just before – retirement – Promotion of
Chawla
 Timing – important
 If complaint – directly to president- then hecan transfer to CEC-
for his opinion
 W.r.t removal procedure
 Authors opinion is that - better to hear – other party’s opinion –
before recommendation
 Opportunity must be given …
 No particular format- filing the complaint
 Shall I judge my colleague? Is it fair?
 Acc to 324(5) – Suo moto- not barred- before recommendation –
opportunity- given
 Should the president act upon the recommendation as it is? Whether
he has given power to review the recommendation?
 Whether the recommendation of CEC is final or not?
Not final
CEC- can send recommendation- to president
President can review- not bound by it - no need to accept or reject..
 Disqualification procedure under Art 103 and Art 192 ..
 When we do comparison,
 Recommendation of ECI to president- final- need to accept- no discretion
 But here, Recommendation of CEC to president – not final- no need to
accept-not bounded
 Can review facts and other things …
 When he found – the assessment of CEC- fair, then removal – can be done
 When it is unfair, then he can reject it..

Whether the capacity of president is individual or not?

Not individual
acting on advice of aided ministers
 In Gopalaswami case, made recommendation to president – removal of
chawla
 Recommendation – not binding
 Based on advice of aided ministers, president- rejected recommendation –
 Chawla- 16th CEC
 In T.N Seshan case, No power to CEC –
 Court says recommendation by CEC - mandatory – president can review it.

Whether can we file the judicial review proceedings against the

president’s decision?
yes, can be challenged..
PROCEDURE TO REMOVE ELECTION
COMMISSIONERS VAGUE.. Plea in SC
THANK YOU
 CLASS REPORT – ELECTION LAW CLASS HELD ON 10/03/2022

THE CENTRAL THEME OF THE CLASS:

Interpreting, contextually, proviso 2 to clause (5) of Article 324 of the Constitution of India:

“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 that any other Election Commissioner or a Regional Commissioner

shall not be removed from office except on the recommendation of the Chief
Election Commissioner.”

THE BRIEF OVERVIEW OF THE CLASS

The lecture revolved around the question - how far is the recommendation given by the CEC
binding on the President?

1. Analysis of the proviso 2 to clause (5) of Article 324

a. Recommendation by CEC to the President
i. Theoretical Issues - Binding nature of the recommendation
1. Interpretation of proviso 2 to clause (5) of Article 324 contextually
2. Summary of the discussion
3. Comparative Analysis with respect to other constitutional
provisions where interplay between the office of the President and
the EC happens
4. Comparative Analysis in terms of the phraseology
5. Constituent Assembly Debates
6. Conclusion
ii. Practical Issues - procedure followed for making recommendations
1. Suo Motu
2. Transparency
3. Weightage
4. Opinion

Reg. No. : BA0180023 Manimaran R 1/8

 CLASS REPORT – ELECTION LAW CLASS HELD ON 10/03/2022

DETAILED SUMMARY

Theoretical Issues - Binding nature of the recommendation

1. Interpretation of proviso 2 to clause (5) of Article 324 contextually

Contours of the Context:

a. Vesting the power to remove a colleague

➢ Vesting with the CEC the power to remove their colleague could be a disastrous
interpretation of article 324.

➢ We have seen from the N Gopalaswamy - Navin Chawla case, how problematic it could
be to vest with the CEC to initiate the removal proceeding of OEC.

b. Informed vs Appropriateness debate

i.Who is more informed to take the decision better

➢ The Chief Election Commissioner is placed in a more informed position than the
President but this
ii.Who is more appropriately placed
➢ The President is perhaps the more appropriate authority to take the decision over the
removal of the CEC following the scheme of the Constitution which posits the President in a
high moral authority.

Example: APJ Abdul Kalam’s refusal to accept the bill amending the definition of the Office of
Profit - an amendment that was made to save Sonia Gandhi from disqualification

2. Summary of the discussion

Recommendations, opinion, consultation, concurrence …..

➢ Consultation is a weaker - instead opinion is stronger

➢ Recommendation is stronger - recommendation is more stronger - more binding

Reg. No. : BA0180023 Manimaran R 2/8

 CLASS REPORT – ELECTION LAW CLASS HELD ON 10/03/2022

➢ Words after these terms brings out the meaning - the settings in which these words are
placed more sense - context is more important - don't just merely look at those words
➢ Consultation to mean concurring
➢ Consultation vs Deliberation - context - According to article 217 - CJI needs to be
consulted - opinion disqualification Election Commission - in article 324 (4) -
➢ Recommandation is stronger than consultation and opinion - when constitution itself says
the binding effect
3. Comparative Analysis with respect to other constitutional provisions where interplay
between the office of the President and the EC happens

Table: Article 103, Article 192 & Article 356

103 and 192
“before giving any decision”
“shall obtain”
“shall act according to such opinion”

356 “unless”

324 “except”

Article 103

“[103. Decision on questions as to disqualifications of members.—(1) If any question arises as to

whether a member of either House of Parliament has become subject to any of the
disqualifications mentioned in clause (1) of article 102, the question shall be referred for the
decision of the President and his decision shall be final.

(2) Before giving any decision on any such question, the President shall obtain the opinion of the
Election Commission and shall act according to such opinion.]”

Article 192

[192. Decision on questions as to disqualifications of members.—(1) If any question arises as to

whether a member of a House of the Legislature of a State has become subject to any of the
disqualifications mentioned in clause (1) of article 191, the question shall be referred for the
decision of the Governor and his decision shall be final.

Reg. No. : BA0180023 Manimaran R 3/8

 CLASS REPORT – ELECTION LAW CLASS HELD ON 10/03/2022

(2) Before giving any decision on any such question, the Governor shall obtain the
opinion of the Election Commission and shall act according to such opinion.]

Article 356

[(5) Notwithstanding anything contained in clause (4), a resolution with respect to the
continuance in force of a Proclamation approved under clause (3) for any period beyond the
expiration of one year from the date of issue of such Proclamation shall not be passed by either
House of Parliament unless—

(a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be, in
the whole or any part of the State, at the time of the passing of such resolution, and

(b) the Election Commission certifies that the continuance in force of the Proclamation approved
under clause (3) during the period specified in such resolution is necessary on account of
difficulties in holding general elections to the Legislative Assembly of the State concerned:

4. Comparative Analysis in terms of the phraseology

Oxford Learner’s Dictionary:

“an official suggestion about the best thing to do to1”

Black’s Law Dictionary defines the recommend as:

“RECOMMEND. To advise or counsel.2”

“ADVICE. View; opinion; the counsel given by lawyers to their clients; an opinion expressed as
to wisdom of future conduct.

The word has several different meanings, among others, as follows : Information or notice given;
intelligence ;— usually information communicated by letter ;—Chiefly as to drafts or bills of

https://www.google.com/search?q=oxford+dictionary+recommendation+meaning&rlz=1CAUBRP_enIN984&oq=o
xford+dictionary+recommendation+meaning&aqs=chrome..69i57j0i22i30l2j0i22i30i395l2.9975j1j7&sourceid=chr
ome&ie=UTF-8
2
https://www.latestlaws.com/wp-content/uploads/2015/04/Blacks-Law-Dictionery.pdf

Reg. No. : BA0180023 Manimaran R 4/8

 CLASS REPORT – ELECTION LAW CLASS HELD ON 10/03/2022

exchange ; as, a letter of advice.— Advice implies real or pretended knowledge, often
professional or technical, on the part of the one who gives it.”

The phrase “except on the recommendation” as found in the Constitution

The term “recommend” (which includes recommendation) is used 99 times in the text of the
Constitution (including the Schedules and Appendices). The following table enlist those
provisions where the term “recommend” is used along with the nature in which they are used.

Based on the above analysis we can classify the nature in which the term “recommend” is used:

5. Constituent Assembly Debates

Constituent Assembly Debates, 1949 Part II

CONSTITUTION ASSEMBLY OF INDIA - Volume VIII Wednesday, the 15th June 1949

Reg. No. : BA0180023 Manimaran R 5/8

 CLASS REPORT – ELECTION LAW CLASS HELD ON 10/03/2022

Debate on draft article 289 (present article 324 of the Constitution)

“So far as clause (4) is concerned, we have left the matter to the President to determine the
conditions of service and the tenure of office of the members of the Election Commission, subject
to one or two conditions, that the Chief Election Commission, shall not be liable to be removed
except in the same manner as a Judge of the Supreme Court. If the object of this House is that all
matters relating to Elections should be outside the control of the Executive Government of the
day, it is absolutely necessary that the new machinery which we are setting up, namely, the
Election Commission should be irremovable by the executive by a mere fiat. We have therefore
given the Chief Election Commissioner the same status so far as removability is concerned as we
have given to the Judge of the Supreme Court. We, of course, do not propose to give the same
status to the other members of the Election Commission. We have left the matter to the
President as to the circumstances under which he would deem fit to remove any other member
of the Election Commissioner, subject to one condition that the Chief Election Commissioner
must recommend that the removal is just and proper.”

Practical Issues - procedure followed for making recommendations

1. Suo Motu Cognisance

➢ Can the CEC suo motu make recommendations to the President for the removal of OEC?
➢ No. Article 324 doesn’t provide for suo motu recommendation by the CEC for the
removal of the OEC. At the same time it doesn’t rule out the possibility. But “prior
recommendation” as a phrase has been used in the Constitution to provide for such situations but
the proviso 2 clearly doesn’t portray any such terminology or intention.
2. Transparency
➢ Is the Recommendation by the CEC to the President available to the public?
➢ Generally No. But in the case of the Recommendation that was given by a former CEC N
Gopalaswamy to the President for the removal of the then OEC Navin Chawla, it was provided
to an applicant under the RTI

Reg. No. : BA0180023 Manimaran R 6/8

CLASS REPORT- RECOMMENDATION 03/14/2022

CLASS REPORT-Election Law

Date: 14.03.2022 Session: 2nd Hour Presented: 3rd Hour (Rescheduled/Swapped Class)

TOPIC: Appointment, Removal, Recommendation (Continuation Class)

By: Narayana M, BA0180025

 Resource Person:

Mr. S. Mohammed Azaad, Assistant Professor of Law, Tamil Nadu National Law University
(TNNLU), Tiruchirappalli, Tamil Nadu.

 Presenter:

Mr. Narayana M, Student, B.A.LL.B.(Hons.), BA0180025, Tamil Nadu National Law

University (TNNLU), Tiruchirappalli, Tamil Nadu.

 Contents of the Session:

Binding of recommendation:

The class has begun with the question of whether the recommendation of Chief Election
Commissioner (CEC) to the President of India is binding or not? It is still a disputed area as
there is no concrete rule or precedent being present.

It is viewed that considering the recommendation from CEC is not entirely binding in this
case it was viewed in the case of Navin Chawla, as in this case, the former CEC N.
Gopalaswami wanted to remove him with the recommendation of removal to the president,
here CEC has pointed various reason for his removal, one of the reasons is he was biased as
his favourite political party is participating in the election so he may favour him.

Also considering the judgement of T.N Sheshan which we have read in beginning also in our
previous classes points that for removal of other election commissioners (OEC), must be
discussed only when they have a valid reason. We don’t have any other judgment explicitly
speaking about the recommendation are binding or not.

255th Report on Electoral Reforms:

This report gives us an idea of strengthening the various areas of ECI, as in generally Article
324(1) of the Constitution, the ECI has been entrusted with the powers of supervision,
guidance, and control over the production of electoral rolls for, and the conduct of, all

1
CLASS REPORT- RECOMMENDATION 03/14/2022

Parliamentary and State elections. The protection granted to members of ECI also includes
the terms of appointment and removal etc. where the impeachment route which not only
granted to CEC but also OEC.

Moving to Para 6.2 as it also gives insight into Art.324(2) for the composition of election
commissioners, from Dinesh Goswami Committee,1990 along with ECI letter to maintain
status quo. Currently, we have a composition is 1 CEC and 2 OEC, as from the class
discussion it is viewed, we must maintain the same route as neither increase nor decrease as it
leads to problems as considering efficiency and exponents. Here quoting the rationale “The
three-member body is very effective in dealing with the complex situations that arise in the
course of superintending, directing and controlling the electoral process, and allows for
quick responses to developments in the field that arise from time to time and require an
immediate solution. Increasing the size of this body beyond the existing three-member body
would, in the considered opinion of the Commission, hamper the expeditious manner in
which it has necessarily to act for conducting the elections peacefully and in a free and fair
manner”.

From Para 6.3,6.4 and 6.5, in 6.3 it states about no political interference and
thus expressly provides that the removal of the CEC from office shall be on “like manner and
on the like grounds as a Judge of the Supreme Court” yet simple impeachment procedures
are not being used here. In 6.4, gives an opined on the 324(5) is being inadequate as wording
presented here as they needed to be par with equalist procedures.

As here one of the authors is N. Gopalaswami himself, for these procedures, as advocated to
add impeachment throughout or it needs to be removed. Yet he changes this opinion himself
as we can see his decision in the Navin Chawla case. In relation to 6.5, we must note about
equity as they are being in line with legislation as every member get the same benefits, as
they retire at the same age, as they have one word one decision given to CEC and OEC as
they are in line with 1991 law.

Here comes a new discussion as questioned raised by our classmates. Who is the person as
the members are being accountable when they commit the wrong? For this question, the
answer is the president as there is no disciplinary body/authority present as to the current
procedure for removing EC, first is CEC through impeachment procedures with debate
among MPs. Another is with the power of the president like the appeal that happened in

2
CLASS REPORT- RECOMMENDATION 03/14/2022

Navin Chawla case as in the initial day they have draft memorandum to the president as they
are not satisfied with the action of CEC.

Another question is even though the memorandum is passed to the president it is again passed
forward to ECI to take action how can it be proper? For now, it is clear we cant remove OEC
without the recommendation of CEC yet this route has existing lacuna, as adding to this the
president have to send compulsory the complaint or memorandum get the opinion of CEC, as
we can do much of interpretations as lacuna exists on the wording of the section.

As here another point was raised as from Art 324 it is clear that it implicitly states that the
president has to go through this process, and for this purpose compliance and memorandum
are different in nature. As sometimes the complaint is given against the whole of ECI as
they’re biased like making the voting machine a default. And other cases are referred to as
Tamil Nadu Elections. Only this can be strong as they have reacted similarly to S.103 and
S.192.

After this, we have moved to Para 6.6, as to why CEC is not supervision to election
commissioners which we viewed in T N Sheshan’s case, “If the CEC is considered to be
superior in the sense that his word is final, he would render the ECs non-functional or
ornamental. Such the intention is difficult to cull out from Article 324 nor can we attribute it
to the Constitution-makers”

Para 6.7 and 6.8 enact recommendations that have been proposed to Art 324, trying to put
equivalent procedures such as impeachment is being, the procedures must be done (in cases
of recommendations).

After this, we moved to appointment procedures, Paras 6.10.2 to 6.10.6 talks about the
appointment procedures, here although the issue of appointments was considered in the
Constituent Assembly, and a proposal to make nominations subject to confirmation by a two-
thirds majority was mooted, it was rejected in a combined session of Parliament.

In 1990, the Goswami Committee suggested that the CEC be nominated by the President in
collaboration with the Chief Justice of India and the Leader of the Opposition in the Lok
Sabha. In turn, the CEC should be consulted on the matter of the other Election
Commissioners' appointments, and the entire consultation process should be backed by
legislation.

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CLASS REPORT- RECOMMENDATION 03/14/2022

The Constitution's Seventieth Amendment Bill 1990 was presented in the Rajya Sabha,
stating that the CEC would be selected by the President following consultation with the
Chairman of the Rajya Sabha, the Speaker of the Lok Sabha, and the Leader of the
Opposition (or the largest party) in the Lok Sabha. The CEC was also invited to participate in
the election commissioners' appointment process as part of the consultative process.

Because there is no Parliamentary law controlling the nomination of Election Commissioners,

the government of the day appoints them without consulting the public. The Law Ministry is
required to obtain the dossier approved by the Prime Minister, who subsequently
recommends a name to the President, according to this practice. As a result, there is no
concept of the collegium and no opposition involvement.

Although there are no formal requirements for their appointment, tradition suggests that only
senior (current or retired) civil officers with the rank of Cabinet Secretary or Secretary to the
Government of India, or an equivalent level, shall be selected. Despite being placed on par
with Supreme Court judges in terms of the removal process, the Supreme Court rejected the
argument that the CEC should have qualifications equivalent to those of a Supreme Court
judge in Bhagwati Prashad Dixit’s case

Where after this we have discussed Comparative practice, as they have stated about Canada,
Ghana, the US etc. In Ghana, the President appoints the seven-member Election Commission
on the advice of the Council of State, with the Chairman and two Deputy Chairmen serving
on a permanent basis.

In Canada, the Chief Electoral Officer of Canada is appointed by a House of Commons

resolution for a ten-year non-renewable term, and he/she reports directly to Parliament to
ensure their independence from the government. The six Federal Election Commissioners in
the US are appointed by the President with the Senate's advice and consent. Members of a
political party may serve on the Commission, although no more than three Commissioners
from the same party may serve at the same time.

 Conclusion:

From this class, we know. This lecture is insightful on the concept recommendation and
process of approval and removal of ECs. Furthermore, emphasis was created on Art. 324 and
its contribution toward deciding ECI.

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CLASS REPORT- RECOMMENDATION 03/14/2022

 Method of Delivery:
The professor’s method of delivery was primarily lecture and discussion methods.
 Teaching Aids Used:

A lecture was delivered by the professor and then we viewed the wordings from various
judgments, order along with journal articles. Further, detailed discussions were initiated
by means of questions.

 Intensity of Interaction:

The session was didactic and it was overall interactive. Multiple questions we raised by the
students during the lecture, which lead to detailed discussions on the subject.

 Relevancy and Usefulness of the Class to Participants:

The class was useful and informative to all the students; it gave deep knowledge of concepts
of election commissioners, their appointment, removal and recommendation. Further gives us
great insight into Article 324 and why it is necessary to have to go through reports as we can
add or even interpret the law in many forms.

 MCQ’s
1. Can a recommendation for removal of EC, to the president be binding or not?
a. Binding b. Not c. Both A & B d. None
2. In which case, at that time N.Gopalaswami was in the position of CEC?
a. T N Sheshan b. Bhagwati Prashad Dixit c. S.Y. Qurashi d. Navin Chawla
3. Under which constitution bill, recommendation of including the leader of the
opposition party for consultation of EC appointments?
a. 6th b. 7th c. 8th d. 9th
4. Currently how many member bodies does the election commission have?
a. 4 b. 5 c. 3 d. 2
5. Which country has seven-member Election Commission from the following option?
a. Ghana b. Canada c. USA d. India
 Questions
1. Can the power of CEC remove any EC with help of recommendations given by ECI?
Explain it with Case Laws. (Navin Chawla Case).
2. What are the recommendations given in the 255th Report for the appointment of EC?
List all suggestions and why they are not being adopted?

5
CLASS REPORT- RECOMMENDATION 03/14/2022

3. State the reason why we can have a body with more than 3 members in the current
election commission? (Report and T N Sheshan case.)

6
 Election Law Class Report

Submitted by:

Nevin A
BA0180028

Date of submission of report and reporting done in class: 15/03/2022

Date of class reported on: 14/03/2021

Topic: Recommendations of the 255th Law Commission Report on Electoral Reforms

I. Lecture by:
Mr. S. Mohammed Azad, Assistant Professor of Law, TNNLU

II. Contents of the Session

The session started at 3:20 PM on 14/03/2021 and concluded at 4:20 PM. The session
began with summarisation of the class before that by a fellow student who spoke on
comparative electoral practices in countries like Ghana while dealing with chapter 6 of the
255th Law Commission Report on electoral reforms. Then the session began with an
overview of the recommendations given in 6.12 of the report.

A. Recommendations in 6.12
Beginning with recommendations given by the Law Commission, the first key one
which was discussed was to amend the The Election Commission (Conditions of Service of
Election Commissioners and Transaction of Business) Act, 1991 and to include the word
“appointment” and for the act to be called the Election Commission (Appointment and
Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991”.
Similarly in the short title of the act, these words were proposed to be added.

The second point of discussion was relating to appointments of the Chief Election
Commissioner (CEC) and other Election Commissioners (EC) being made consultative
processes. The law commission through the report vouched for a proper written procedure in
terms of appointment. These recommendations aim at trying to bring in consultative
processes from countries like Ghana which have similar mechanisms. It is known that the
Dinesh Goswami committee also proposed a similar procedure which called for collegium
and select committee recommendations to be done in consultation with the President of India.
In this regard, the proposal is that the appointment of cec and oecs according to the report
shall be done by the president in consultation with a collegium consisting of the Prime
Minister, leader of opposition (or leader of the largest party in opposition of the government),
and the Chief Justice of India.

Next up, the convention of appointment of the senior most Election Commissioner as
the Chief Election Commissioner was discussed. The aforesaid is what usually happens and
the same is mentioned in the recommendations as well. Therefore, this is codification of
existing convention. So what is being proposed is generally senior most will be appointed but
the important thing is that it need not always be mandatory provided the said committee
decides that the elevation would be improper in reasons to be recorded in writing.

B. Permanent, Independent Secretariat of the Election Commission of India

The discussion then moved to division C of Chapter 6 in the Law Commission report
which talks of permanent, independent Secretariat of the Election Commission of India
(ECI). This basically means the election commission must be free of executive and political
influence. Only then will it be an independent body.

Now, 6.14 in the report reads as follows

“To further strengthen the independence of the secretariat, consonant with the intention of the
framers of the Constitution, the Goswami Committee in 1990 recommended that the ECI
should have an independent secretariat, along the lines of the Lok Sabha/Rajya Sabha
secretariats provided in Article 98(2), which permits the Parliament to regulate the
recruitment and service conditions of persons appointed to the secretarial staff in either
House of Parliament.”

So it is clear that the proposal is for a new provision in the Constitution. Therefore,
this is no mere statutory amendment but constitutional amendment to Article 98(2). An
analogy to the Tamil Nadu National Law University having its own rules and procedures was
made during the court of the class for better clarity.
 C. Relationship between CEC and other Election Commissioners
A callback to previous lectures relating to the CEC being a permanent member and
other election commissioners not being so was done. However, it was made clear that both
posts are constitutional functionaries. They are all constitutionally sanctioned. But the
differentiating point is that only the CEC is a permanent incumbent while the other two posts
can be added, deleted or abolished. So the idea is first among equals in administrative matters
(primus inter pares). An analogy to Supreme Court judges and the Chief Justice of India was
made.

There was also a brief look at regional commissioners (RCs) and how the Law
Commission says that they are a separate class from the CEC and other ECs. The RCs are a
matter of necessity. Sometimes they are needed and sometimes they aren’t. Therefore,
sometimes the President of India may deem that more manpower is required and
appointments can be done this way. It was once again reiterated at this juncture that the Law
Commission provisions are merely recommendations.

Thanks to various doubts raised by students, the question of whether the power of
appointment and removal of ECs by the President was an executive power or a quasi-judicial
power. It was stated that while one opinion says that it’s executive power, it could be quasi
judicial as it’s similar to disciplinary proceedings in any other institution. Currently this is not
clarified in law but this entire removal procedure can be equated to a quasi-judicial
proceeding which needs to come out in public.

D. Article 324(1) of the Constitution of India

A powerpoint presentation was then shared in class and the discussion moved to
Article 324(1) of the Constitution of India which provides for superintendence, direction and
control of elections to be vested in an Election Commission​. In verbatim it reads “The
superintendence, direction and control of the preparation of the electoral rolls for, and the
conduct of, all elections to Parliament and to the Legislature of every State and of elections to
the offices of President and Vice-President held under this Constitution shall be vested in a
Commission.”

This Election Commission is an autonomous body that is insulated from external

influence which seeks to ensure free and fair elections which are a basic feature of the
Constitution. The same was given in the Indira Nehru Gandhi vs. Raj Narain case1. The
commission is also
● Permanent and Constitutional
● Single Central Body
● Independent Constitutional Authority
● All-India body
● Imperium in imperio (empire within an empire (state))

E. Meaning of the term “all elections”

The meaning of the term “all elections” as given in Article 324(1) of the Constitution
was then explained. This includes Executive Elections for President and Vice President in
accordance​ with Article 324, Presidential and Vice Presidential Elections Act, 1952 and the
rules made thereunder as well as the Assembly Elections for members of Parliament and
State Legislative Assemblies ​in accordance with Article 324, Representation of the People
Act, 1951 and the rules made thereunder.

Moving on to State Election Commissions which were brought in by the 73rd and
74th Constitutional amendments in 1992, these bodies are vested with powers of conduct of
elections to the Corporations, Municipalities, Zilla Parishads, District Panchayats, Panchayat
Samitis, Gram Panchayats and other local bodies. They are independent of the Election
Commission of India. And it must be noted that the state commissions are not mentioned in
the Constitution because there were no local body elections till the amendments in 1992.

F. The Digvijay Mote Case and the concept of plenary powers

The attention was then turned to the concept of plenary powers and what exactly they
are. They were explained to be absolute power without limitation. An extended version of the
meaning could be that it is power that can't be questioned. Another way to understand plenary
power is that no one can question or review it. So the question as to whether the ECI really
has plenary powers in India was focused on.

In the Digvijay Mote vs, Union of India2 case, it was held by the court as follows, “If
the EC is of the opinion that having regard to the disturbed conditions in a State, or a part

1
1975 Suppl. SCC 1
2
(1993) 4 SCC 175
thereof, free and fair elections cannot be held, it may postpone the same. However, this power
is not uncontrolled. It is subject to judicial review, as it is a statutory body exercising its
functions affecting public law rights. The judicial review will depend on the facts and
circumstances of each case.”

This was cited as an example of plenary power. So if the ECI thinks that in its
opinion, the situation is something that needs immediate attention, it can postpone the
election and take such necessary action. But this power is not uncontrolled. It is subject to
judicial review. The court in the case also stated that the power conferred on the Election
Commission by Article 324 has to be exercised ​
● not mindlessly,​
● nor mala fide,​
● nor arbitrarily, ​
● nor with partiality,​
● but in keeping with the guidelines of the Rule of Law and ​
● not stultifying the presidential notification nor existing legislation.

G. ECI vs AIADMK and AC Jose vs Sivan Pillai

In the two cases of ECI vs AIADMK3 and AC Jose vs Sivan Pillai4, plenary powers
were further talked about and these were discussed during the class too. It was held in these
two cases that in case there is no law on a matter relating to the conduct of elections, the ECI
may pass any order. However, when there is an Act or rules, the Commission cannot override
the same. Thus, the powers of the Commission are meant to supplement, rather than supplant.
In the absence of a provision to meet a contingency too, the ECI can invoke its plenary
power. So in conclusion, the ECI might have plenary power but there are certain limited
limitations and judicial review is possible.

III. Conclusion
The session concluded upon the end of the discussion on plenary powers. Some
doubts were raised by the students and Mr. Azad ensured that they would be clarified
during the next lecture.

3
1994 Supp (2) SCC 689
4
AIR 1984 SC 921
 IV. Method of Delivery
Mr. Mohammed Azad’s method of delivery was primarily lecture and discussion
based.

V. Teaching Aids used

Powerpoint presentations were used during the court of the lecture as well as the bare
text of the 255th Law Commission Report on Electoral Reforms and the Constitution of
India.

VI. Intensity of Interaction

The session was not a monologue and involved discussion with the students. A
plethora of doubts were asked during the course of the lecture and they were clarified in great
detail by Mr. Azad.

VII. Relevance and usefulness of the session

The lecture was extremely informative and provided great insights into the
appointment procedure of the Election Commissioners and how they could be made power.
The powers of the Election Commission of India and the concept of plenary powers were
made clear and several important Constitutional provisions were discussed too along with
recent real life examples, making it a very relevant and useful session.

VIII. MCQs
1. What was the word which was proposed to be added by the Law Commission in 6.12
of the report on electoral reforms?

a) Removal b) Appointment c) Regional Commissioner d) Plenary

2. Amendment to which Constitutional provision was proposed in 6.14 of the Law

Commission report on electoral reforms?

a) Article 98(2) b) Article 243K c) Article 243ZA d) Article 320

3. Which of the following Constitutional provisions provides for superintendence,

direction and control of elections to be vested in an Election Commission?
 a) Article 327 b) Article 328 c) Article 324(1) d) Article 243K

4. What is plenary power?

a) Power without limitation b) Limited powers c) No powers d) Sharing of powers

5. The Election Commission of India has the power to _________ laws that already exist

a) Supplant b) Stultify c) Modify d) Supplement

IX. Descriptive Questions

1. Bring out the relationship and the differences in the posts of the Chief Election
Commissioner and other Election Commissioners. Is the CEC superior to other ECs
or are they all on equal footing?

The Chief Election Commissioner is a permanent member and the other Election
Commissioners are not. However, there is no concept of superiority as such as both are
constitutional functionaries which are constitutionally sanctioned. While the CEC is a
permanent incumbent, the other posts can be modified. Having said that, the powers that the
other Election Commissioners enjoy is the same as the CEC. The CEC is merely first among
equals, especially in administrative matters i.e. primus inter pares. This is analogous to
Supreme Court judges and the Chief Justice of India.

2. Summarise the recommendations regarding appointment of Election Commissioners

as given in 6.12 of the 255th Law Commission Report on Electoral Reforms.

The recommendations as given in 6.12 of the 255th Law Commission Report on

Electoral Reforms are as follows:
● Amend the The Election Commission (Conditions of Service of Election
Commissioners and Transaction of Business) Act, 1991 and include the word
“appointment” in the name of the Act and its short title.
● To have a proper written procedure in terms of appointment of CECs and other
Election Commissioners by having a separate section. These recommendations aim at
 trying to bring in consultative processes from countries like Ghana which have similar
mechanisms. The Dinesh Goswami committee also proposed a similar procedure
which saw collegium and select committee recommendations which must be done in
consultation with the prez being proposed.
● Continuing with the aforesaid, the proposal is that the appointment according to the
report shall be done by the president in consultation with a collegium consisting of the
Prime Minister, leader of opposition and the Chief Justice of India.
● Codification of existing convention of appointing senior most Election Commissioner
as CEC but with caveat that it need not always be the case if there are certain reasons
which are to be recorded in writing.

3. “The ECI has plenary powers but with certain limited limitations” - Justify this
statement.

Plenary powers are nothing but absolute powers which have no limitation. It is power
that can’t be questioned or reviewed. In this regard, the ECI does have certain plenary powers
but they do have certain limitations. In the Digvijay Mote vs Union of India case, it was held
that if the ECI is of the opinion that conditions are such that free and fair elections cannot be
held, then it can postpone the elections. However, this power is not uncontrolled and is
subject to judicial review depending on facts and circumstances. So, the ECI can make
decisions which are “spur of the moment” but it has to be ensured that the decisions are not
mindless, mala fide, arbitrary, partial, against existing legislation, but in keeping with the
guidelines of the rule of law. Similarly, in the cases of ECI vs AIADMK and AC Jose vs
Sivan Pillai, it was held that in the absence of a law or when laws are silent or when there is
an absence of a provision on a particular contingency, the ECI can invoke its plenary powers
under Article 324(1) of the Constitution of India. But when there are laws that exist, the ECI
cannot override them. So the powers of the ECI are meant to supplement law and not
supplant. So to conclude, the ECI might have plenary power but there are certain limited
limitations and judicial review is possible.
Class briefing – 15/03/2022
Anna Mary Mathew BC0180005
  Definition of the term election
Topics covered  Election a legitimate transfer of power
  Many forms of governing bodies – Monarchy, Single Party
system, Constitutional monarch
 Gov represents the will of the people. The people elected –
manifestation of the will of the people.
 Truest form = Election – recent phenomenum – before:
princely state

Election – only  Another way of selecting representatives – nominations –

Rajya sabha and lok sabha.
way of choosing  Lok sabha - 2 members are nominated by the President
from Anglo-Indian Community
a rep.?  Rajya Sabha – 12 people are nominated by the President
for their contribution and expertise in the fields of Art,
Literature, Science and Social Service.
  Webster's Dictionary - “Election” means the act or
process of choosing a person for an office position or
membership by voting.
 Process – long term procedure.

 Chambers Twentieth Century Dictionary -

Definition of Expression of free will of a person usually by the
“Election” method of voting.
 Free will = no external influence. Expression of choice
associated to Article 19.

 Complementarity between freedom of expression and

right to vote / the right to have a choice - European
Court of Human Rights (ECtHR) .
  Section 2(1)(d) of Representation of the People Act,
1951
 Election means an election to fill a seat or seats in
either House of Parliament or in the House or either
Contd/- House of the Legislature of a State

 Selective definition. Election = fill a seat in Lok Sabha,

Rajya Sabha, legislative assembly/ council.
  2 forms of gov:
1. Legitimate

Election a 2. Illegitimate

“legitimate  Military coup – existing gov overthrown. No free will of

ppl.
transfer of  Dalai lama – exile gov in India.
power”  Is this legitimate
  Int’l law – recognizes orderly/ peaceful transfer of
power.
 In an Election if peaceful transfer – Concluded that
Effective control over the people of a territory is
present as free will is executed.

Contd/-  Effective control – check under int’l law to ascertain the

legitimacy of the gov.
 Moot q – In 2014, in areas where congress previously
had stronghold – were not able to form the power.
Because BJP poached their MLAs. Is it legitimate
transfer of power? – Yes, as it is “democratically
transferred power”
  Depends on international recognition- for which there
should be, population, territory, gov., sovereignty.
 Tibetan Government-in-Exile
In 2011, Dalai lama announced that he would delegate his
political power to whoever is democratically elected to
the top office of the TGiE.
Test of effective After it’s first elections.
control in gov. No country has recognised its independence.

But all financial assistance etc provided by India

  In short, Election = Institutionalized process – free and
fair rep of ppl’s will
 More accountability

Conclusion  Can courts entertain an election petition when election

is pending? – Generally Not accepted, because Election
– time bound process.
 Accepted is a POSTMOTEM analysis.
  M Appavu V. I S Inbadurai and Others.
 Declare Mr. Inbadurai’s election as void.

Instance were EP  Madras HC – directed to recount the votes.

was considered  However, this petition went on for 5 years.

 After that the next elections happened and Appavu
before elections won.
were over.
 Put an halt to elections
 When does an election start and when does it end.
Question:
Whether there is any political or administrative
controls over the ECI.
Article 370 - Tenure of office of persons serving
the Union or a State
Doctrine of Pleasure
 There are certain kinds of posting which are there in the union
as well as state government which are at the pleasure of the
commission.
 The constitution itself grants power to the parliament to enact
laws w.r.t the conditions of the service of the election
commission.
 An important point to be noted here is the parliament has the
power to enact a laws but we can check whether that
particular law is reasonable or
Narrow sense –
 multiple candidates exist.
 Whenever a polling is present, its about
the final selection of the candidate.
 When no poll exists, its all about who wins
as an unopposed.
 The moment a candidate gets selected
after the polling, the election ends.
Wider sense
 Election starts from day 1 when ECI
announces the election notification.
 Election ends only after the final
declaration of results – whereby one winner
and multiple runners are declared.
 Whatever happens between this period is
also considered part of the election cycle
and hence cannot be questioned by the
court of law.
 In this case, the Supreme court resides with the
wider sense of the definition of election, that
the entire process of election commences with
the issuance of a notification and terminates
with the declaration of election of the
candidate.
 Article 329(b)- no election to either House of
Parliament or to the House or either House of
the Legislature of a State shall be called in
question except by an election petition
presented to such authority and in such
manner as may be provided for by or under
any law made by the appropriate Legislature
 There is a blanket ban on litigative challenge.
 In every election, there are a lot of
stages(issuance of notification, withdrawal of
candidates,campaigning,etc) hence in this
case, under art 329(b) the validity of an
election can be filed through an election
petition only.
 The power of judicial review with respect to
election matters haven’t been taken away by
the statutes but by the constitution itself. Hence
it restricts judicial review by way of
constitutional bar.
Election Law
Class Report
CLASS TAKEN ON 19TH MARCH 2022

Presented by:
C Silvena Cathy- BA0180040
 Meaning and Definition of Elections (contd.)

remains a landmark judgment w.r.t. the meaning of

elections, when it starts and ends, how to look into
election-related matters, laid down way back in 1952 !

upheld by courts till today!

N.P. Ponnuswami though the courts involved have changed over time: earlier,
case we had election tribunals
specified quasi-judicial tribunals
were abolished, giving the power to the HC
not specific judicial review powers that flow from art 226
or 227, but comes in by way of the concept of election
petitions under the RP Act.
hence, the power to decide on an electoral dispute is a
statutory power.
 Important to note what sort of petition is filed.

Writ Petition Election Petition

Scope and grounds of or Grounds of challenge are
challenge- very broad narrow- a constrained petition

Many election-related disputes might

Courts for proceeding
also be tried under IPC- hate speech,
under IPC
bribery, fraud, etc.

when carried out during election- these are election offences or corrupt practices
can also be checked under IPC by the Sessions Court, other lower judicial courts
But same principle followed: “until and unless the election gets over, courts of law
should not interfere into it”
 What happens when the Election petition becomes
infructuous because you are unable to contest the
Exceptions case on time due to the bar under art 329(b)?
Unable to start and end the case on time, as by that
Courts admit the petition when time the five year time period is over, the tenure is
elections are ongoing: over, and the next election comes into play.
case- to- case basis How to rectify this problem of infructuous
petition- which literally looks like a waste of the
considering the gravity of litigant's money !?
the case or the grievous
Appavu v. Inbadurai
nature of the offence Filed multiple petitions in the
Might be a deliberate
Large public interest mistake- usage of
SC, when the HC was hearing the
case
involved dilatory tactics Delayed so much- enough to
complete Mr. Inbadurai's tenure
 Some people argue that whenever the very validity of the
election is under question, not the mere measures, then in such
cases, the petition should be allowed in the very beginning itself.
But the counterpoint is that it is a dispute between one party v.
the other parties in the election

Mr. Appavu said certain votes had to be counted, (postal votes)

Mr. Inbadurai- just follow the returning officer or the
instructions of the counting officer who said certain votes are
immaterial.
What happens if the difference of vote is very meagre?

The recent UP elections- difference margin was very less (less than
5000)
wanted to recount votes- how are such matters to be adjudicated?
what should the time limit be?
Is the HC overburdened?
Should we go back to having a separate election tribunal with specific experts?

Arguments

Election law is nothing but the branch Criticism- that such matters should be given to a
of constitutional law, so no problem if separate election tribunal, and that it should
hc judges themselves hear the matter have a combination of experts.
because in most of the election- Psephology (statistical study of elections and
related cases- it is a question of law trends in voting)
that is involved, not much of facts- Electoral psychologists
more about the interpretation of the Political scientists/psychologists
law Include experts in these areas also!-such a
tribunal will play a good role, and also reduce
the HC's burden.
 Concept of Voting- Meaning, Definition and Types of Voting

No proper legislative definition is present for voting.

Are the concepts of voting and elections inseparable? Can there be elections without a
voting procedure?

What is the nature of this right?

Fundamental Right? Constitutional right? Statutory
right? Legal right? Moral right?

If it is a constitutional right, can we trace it back to any

provision?- Article 326
does art 326 talk about the right to vote? or is it about right to
register oneself as a voter?

The question is whether it is a constitutional right?- art 326 looks

like it provides a constitutional right
 Law of torts
Ashby v. White (being denied the right
to vote)
Bhim Singh v. State of UP Looking at the RP Act,
there is a specific section-
Whether every registered voter has a right to vote or section 62, that states that
can the right be limited? there is a right to vote. Why
is there a separate
Shall be on the basis of provision that gives the right
It is from the right to “adult suffrage”- this to vote if it is already
vote only that the right itself shows the implied in the CoI? (so is it to
to get registered as a presence of the right to
be considered as a
voter flows. vote under art 326 of statutory right or a
the constitution constitutional right?)
 Voting Process

Elector Elected
(the people who vote) (the candidate)

2 types of rights: Right to stand in any place

Right to get registered as a voter in India as a candidate
Right to vote in a particular election
(These rights need to be checked side by side)

The right way is to approach each and every right independently and then look
at what are the provisions supporting the same
 What about restrictions on constitutional rights?
Right to stand as a candidate
Registered voter
can one still remain in prison, stand in an election and win an election?
Prisoner?
eg. Recent up elections- atleast 2 people are still in prison, still
Preventive Detention? contested and won.

Prisoners- in India, no right to vote

Preventive detention- votes by post allowed- Section 62(5) of the RP Act talks
about how prisoners are not allowed to vote but says that this disqualification is
not applicable in the case of preventive detention

Identify the positive and negative rights, trace the constitutional and statutory
provisions and compare them.
 Why can't these rights be seen as fundamental rights?-Art 19(1)
(a)- freedom of expression?
(Earlier, CJI Sharad Arvind Bobde had stated that part III of the CoI does not
state that right to voting is a FR.)

PUCL vs Union of India

The supreme court has ruled that the right to vote is a statutory right ( an
individual's legal right)
This case still had separate views on the "status accorded to the right to vote
in the Indian constitutional framework"-
Statutory, as comes by way of the RP Act v. Constitutional, due to Art. 326 of the CoI

The End