Superintendence, Direction and Control of Elections

• The expression superintendence, direction and control and the conduct of all elections in Article 324 (1) has been held to include such powers which though not specifically provided but are necessary to be exercised for effectively accomplishing the task of holding the elections to their completion.
• It would, therefore be legitimate, on the part of the Commission, to make general provisions even in anticipation or in the light of experience, in respect of matters relating to symbols.
• In the interest of free and fair elections, for the safety and security of electors and with a view to prevent intimidation and victimisation of electors, the Commission has full power to direct the manner of counting of votes.
• Directives issued by the Election Commission for transfer of those officers from one district to another, who had completed more than four years of stay in one district, have been held not ultra vires Article 324(1).
• The word elections in Article 324 includes the entire process of election, which embraces many steps some of which have an important bearing on the process of choosing a candidate.
• It includes every process issued after the issuance of the Notification for holding the election.

• The powers in respect to the allotment of symbols to political parties, adjudication of disputes with regard to recognition of parties and rival claim to a particular symbol, are vested with the Election Commission under Article 324.
• Providing and reserving election symbols for recognised political parties would not amount to undemocratic act.
• Orders passed by the Commission for re-scrutiny of nomination papers are held binding on the Returning Officer.
• The direction issued by the Commission of rescinding the election notification for general elections to the Legislative Assembly of a State, on the ground of abduction of a candidate of a political party for preventing him from filing nomination papers, has been upheld.
• The phrase conduct of elections in Article 324 has been held to be of wide amplitude, which would include power to make all necessary provisions for conducting free and fair elections.
• Since, every contingency cannot be foreseen or anticipated with precession, the Apex Court in Union of India v. Association for Democratic Reforms, held that the Commission could cope with situation where the field was unoccupied by issuing necessary orders.
• Article 324 has been said to be a reservoir of power, leaving scope for exercise of residuary power by the Commission in its own right, as a creature of the Constitution.
• The Commission, may, therefore, issue directions, asking the candidates to furnish information relating to their assets, educational qualification, antecedents of his life, etc.
• However, the words superintendence, direction and control in Article 324(1) are meant to supplement and not supplant the law and therefore, the Commission cannot proceed against a validly made law concerning the elections.
• Also, no power is conferred on the Election Commission to de-register a political party.
• The Commission may, however, regulate, with the approval of the Government, any gray area, not covered by the Rules framed by the Legislature.

Challenges: –

1. Paragraph 16A of the Election Symbols (Reservation and Allotment) Order, 1968 says that the commission may suspend or withdraw recognition of a recognized political party if it refuses to observe the model code of conduct.
2. But it is doubtful whether this provision is legally sustainable.
3. The reason is that withdrawal of the recognition of a party recognized under these orders seriously effects the functioning of political parties.
4. When the code is legally not enforceable, how can the ECI resort to a punitive action such as withdrawal of recognition?

5. One issue relates to the abrupt transfer of senior officials working under State governments by an order of the commission.
6. It may be that the observers of the ECI report to it about the conduct of certain officials of the States where elections are to be held.
7. The ECI apparently acts on such reports and orders the transfer on the assumption that the presence of those officials will adversely affect the free and fair election in that State.
8. Transfer of an official is within the exclusive jurisdiction of the government.
9. It is actually not clear whether the ECI can transfer a State government official in exercise of the general powers under Article 324 or under the model code.
10. Further, Article 324 does not confer untrammelled powers on the ECI to do anything in connection with the elections.
11. If transfer of officials is a power which the ECI can exercise without the concurrence of the State governments, the whole State administration could come to a grinding halt.
12. The ECI may transfer even the Chief Secretary or the head of the police force in the State abruptly.
13. In Mohinder Singh Gill’s case (supra), the Court had made it abundantly clear that the ECI can draw power from Article 324 only when no law exists which governs a particular matter.
14. It means that the ECI is bound to act in accordance with the law in force.
15. Transfer of officials, etc is governed by rules made under Article 309 of the Constitution which cannot be bypassed by the ECI under the purported exercise of power conferred by Article 324.

Way Forward: –

• It has been ruled that the Election Commission and the Election Authorities, are also governed by the Representation of People Act, 1951 and that they cannot act in a manner inconsistent with the Act.
• It is thus ruled that Article 324 has to be read in the light of the Constitutional Scheme and the Act 1950 and the Act, 1951.
• In A.C. Jose v. Sivan Pillai, the Apex Court had listed out some serious faults in the use of EVM.
• Since the new improved version of EVM had taken care of those defects as also the Representation of People Act, 1951 and the Rules there under were accordingly amended, the Apex Court in T.A. Ahammed Kabeer v. A.A. Azeez, approved the use of EVM. Relying on the Apex Court observations the Karnataka High Court in M.B. Fernandes v. C.K. Jaffer Sharief, upheld the amendment incorporated in the Act, providing the use of EVM as not violative of Article 14, being not arbitrary or ultra vires the Constitution.
• In T.A. Ahammed Kabeer v. A.A. Azeez, {40} the Supreme Court approved the use of the present version of EVM, wherein it was held possible to get at the disputed impersonated votes by decoding, though identity of the impersonator could not be detected, which shortcoming was well with the manual ballot system also, the Court said.

Question: –

The independence of the Election Commission is the major concern in today’s time and it has been challenged from time to time extensively. Discuss.