- Article 329(b)
- “No election to either House of Parliament or the House of the Legislature of a State shall be called in question except by an election petition.”
- Bar on Judicial Interference
- Prohibits courts from intervening in the electoral process once the election notification is issued.
- Limited Judicial Review
- Allows challenges only through election petitions after the results are declared.
- EC’s Operational Freedom
- Protects the Commission from mid-election litigation, ensuring smooth conduct.
Several landmark Supreme Court judgments have shaped the landscape of electoral practices, ensuring fairness, transparency, and adherence to democratic principles.
- ADR v. Union of India (2002): Mandated disclosure of candidates’ criminal records, educational qualifications, and personal assets for elections.
- PUCL v. Union of India (2013): Recognized negative voting as a constitutional right and directed the implementation of the ‘NOTA’ option in electronic voting machines.
- Subramanian Swamy case (2013): Declared VVPAT as indispensable for free and fair elections.
- Lily Thomas case (2013): Held that convicted MPs and MLAs will be immediately disqualified from holding membership of the House without being given three months’ time for appeal.
- Establishment of special courts (2017): Ordered by the Supreme Court to expedite trials involving lawmakers, leading to the setup of 12 special courts nationwide.
- Public Interest Foundation v. Union of India (2018): Directed the Election Commission to mandate political parties and candidates with criminal backgrounds to publish information about their antecedents during the campaign period.
- Supreme Court directive (November 2023): Asked the Central Government to take a stand on controlling the announcement of freebies by political parties during election campaigns.
- Electoral bonds scheme struck down (February 2024): which provided blanket anonymity to political donors.
The Election Commission (Art. 324) is entrusted to conduct free and fair elections in India which are foundational for the democracy to sustain.
Constitutional safeguards to ensure its independence and impartiality:
- The Chief Election Commissioner is provided with the security of tenure. He cannot be removed from his office except in the same manner and on the same grounds as a judge of the Supreme Court.
- Service conditions of the Chief Election Commissioner cannot be varied to his disadvantage after his appointment.
- Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the Chief Election Commissioner.
Also, In Mohinder Singh Gill vs Chief Election Commissioner (1978), the Supreme Court affirmed that Article 324 grants plenary powers to the ECI to conduct free and fair elections. The Constituent Assembly granted expansive residual powers to address diverse emerging situations.
Flaws in its functioning:
- The Constitution has not prescribed the qualifications (legal, educational, administrative or judicial) for the members of the Election Commission.
- The term of the members of the Election Commission is not specified.
- Election Commissioners are not debarred from further appointment in government offices post retirement.
- Its expenditure are not charged on consolidated fund of India
- Absence of equal tenure security to Election Commissioners like CEC
- Inadequate enforcement powers: No Power to Deresigster political parties, no role in enforcing inner party democracy & regulation of party finances
- Issue of incompletion of tenure: Although the CEC’s tenure is six years, no CEC has completed his tenure since 2004 yet.
- Until recently, there was no law governing the appointment of election commissioners.
However, some of these flaws have been addressed through the Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023.
{EXTRA
- Appointment : CEC and other ECs will be appointed by the President on the recommendation of a Selection Committee comprising Prime Minister (Chairperson), Leader of the Opposition in the Lok Sabha (Member) and a Union Cabinet Minister to be nominated by the Prime Minister (Member).
- Qualification of CEC and ECs: Persons who are holding or have held posts equivalent to the rank of Secretary to the central government will be eligible to be appointed as CEC and ECs.
- Re-appointment: Under the Bill, the CEC and other ECs will not be eligible for re-appointment.}
The CEC is vital to the integrity of India’s electoral process. While the Constitution envisions an independent and impartial ECI, the current appointment process raises questions over its functional autonomy.
Constitutional & Legal Provisions:
- Article 324 – Election Commission of India– Vests the superintendence, direction, and control of elections in the ECI.
- Appointment by President– CEC is appointed by the President under Article 324(2); the procedure is undefined.
- No Legislative Framework Yet– Executive continues to dominate appointments in the absence of a dedicated law.
- Tenure and Service Conditions– CEC can only be removed like SC judges; ECs lack the same protection.
Recent Development-
- SC Verdict – Anoop Baranwal Case (2023)– Ordered a 3-member panel (PM, LoP, CJI) to select CEC/ECs until a law is enacted.
- CEC (Appointment Act), 2023– Replaces CJI with a Cabinet Minister, weakening neutrality in the selection process.
- Article 324(5) – Conditions of Service– Ensures CEC’s service conditions cannot be varied to his/her disadvantage after appointment — aimed at protecting independence in office.
Impact on the Autonomy of ECI:
- Executive Dominance in Appointments -Lack of a neutral mechanism risks political appointments.
- Asymmetrical Security of Tenure– ECs can be removed more easily, undermining ECI’s collective autonomy.
- Erosion of Public Confidence– Non-transparent appointments fuel allegations of bias.
- Conflict with Constitutional Morality– Free and fair elections (part of Basic Structure) may be compromised.
- Ignored Reform Recommendations– No action on Law Commission or ARC suggestions for a collegium.
- Comparative Perspective– Other democracies use bipartisan or parliamentary models to ensure fairness.
- Operational Dependence on Executive– ECI relies on the executive for staff, logistics, and security, which, combined with appointment control, can dilute autonomy in practice.
Expert panels like the Venkatachaliah Commission (2002) and Law Commission (2015) have advocated a collegium system with judicial involvement for ECI appointments. The 2023 Standing Committee also called for alignment with the SC’s Anoop Baranwal judgment and global democratic norms.
