- 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.}
Electoral reforms encompass legal and procedural enhancements aimed at fostering clean politics and ensuring free and fair elections.
Key Electoral Reforms in India:
- Lowering of Voting Age: 61st Constitutional Amendment Act of 1988 reduced voting age from 21 to 18 years for Lok Sabha and assembly elections.
- ECI as Multi-Member Commission: Became a Multi-Member Commission in 1989, reverted to a three-member body in 1993.
- Electronic Voting Machines (EVMs): Introduced in 1989, used experimentally from 1998 in selected constituencies.
- Provision Against Booth Capturing: In 1989, provisions made for adjournment or countermanding of elections in case of booth capturing.
- Elector’s Photo Identity Card (EPIC): The Commission introduced Photo-ID Cards in 1993. This helped check bogus voting by non-registered voters and fraud.
- Model Code of Conduct (MCC): Enforced to ensure fair play during elections, expanded under T.N. Seshan’s tenure as CEC.
- Allocation of Time on Electronic Media: Introduced in 2003, mandates equitable allocation of media time during elections.
- Restrictions Imposed on Exit Polls: Prohibited conducting and publishing results of exit polls during elections since 2009.
- Online Enrolment in Electoral Roll: Implemented in 2013, Simplifies voter registration process, enhancing accessibility and efficiency.
- None of the Above (NOTA) Option: Introduced in 2013 following Supreme Court directive, allows voters to abstain from voting
- Voter-Verifiable Paper Audit Trail (VVPAT) System: Developed to increase transparency in voting process, first used in 2013.
- Disqualification of Convicted Legislators: In the Lily Thomas Case (2013), the SC held that convicted MPs and MLAs will be immediately disqualified from holding membership of the House without being given the time of 3 months for appeal.
- Public Interest Foundation v. Union of India (2018): SC Directed the Election Commission to mandate political parties and candidates with criminal backgrounds to publish information about their antecedents during the campaign period.
- Appointment of Election Commissioners: Previously appointed by the President on government recommendation. New rules (CEC and Other ECs Act, 2023) suggest appointment based on a Selection Committee’s recommendations.
The Model Code of Conduct (MCC) is a set of guidelines issued by the Election Commission of India to regulate the conduct of political parties and candidates during elections. The MCC is operational from the date on which the election schedule is announced until the date of the result announcement. (consensus document )
Some key provisions of MCC:
- General Conduct:
- Parties and candidates must refrain from activities that exacerbate differences or stir up mutual hatred among different castes, religious, or linguistic communities.
- Refrain from corrupt practices like voter bribery and intimidation, and avoid criticizing private lives unrelated to public activities of other party leaders.
- Limitations on Ruling parties :
- The MCC prohibits ministers from using official machinery for election purposes or combining official visits with campaigning.
- It also prevents advertisements praising the incumbent government using public funds.
- Additionally, the government cannot announce financial grants, promise construction projects, or make ad hoc appointments during the MCC’s enforcement.
- Ministers are restricted from entering polling stations or counting centers except as voters or candidates.
- Other : Election manifestos must align with constitutional ideals, and avoid promises that may influence voters unfairly.
Role of MCC in Ensuring Free and Fair Elections:
- Supporting EC Mandate: The MCC aligns with Article 324 of the Constitution, empowering the Election Commission to supervise and conduct free and fair elections to the Parliament and State Legislatures.
- Preventing Electoral Malpractices: addresses issues such as bribery and corruption.
- Equalizing Electoral Opportunities: It prohibits the misuse of government resources by the ruling party, promoting fairness among all candidates.
- Fostering Social Harmony: By discouraging activities that could divide communities, the MCC promotes unity and cohesion.
- Enhancing Transparency and Accountability: Political parties are required to justify their promises.
- Preserving Public Confidence in the electoral system: By creating a level playing field and promoting ethical conduct.
However, during the election campaigns for the General Elections 2024, several complaints have been raised against candidates for violating the Model Code of Conduct. The following challenges affect the effectiveness of the MCC:
- Absence of Legal Backing: The MCC lacks legal enforceability, relying solely on the Election Commission’s moral authority.
- Interference with Governance: Early application of MCC is criticized for limiting policy decisions, public spending, and welfare schemes.
- Inadequate Control over Malpractices: The MCC has been ineffective in preventing electoral malpractices such as hate speech, fake news, and voter intimidation.
- Technological Challenges: Evolving technologies like deepfakes and social media platforms pose challenges to MCC enforcement.
- Dependency on Political Cooperation: The effectiveness of MCC relies on cooperation from political parties and governments, which is often lacking.
- Enforcement Capacity of Election Commission: The Election Commission faces challenges due to a shortage of resources for implementing the MCC.
- Ambiguous Clauses: such as ensuring the ‘purity of the election process,’ are subjective and prone to misinterpretation.
Despite the aforementioned challenges, the MCC has become an integral aspect of elections, ensuring democratic electoral contests where the party in power and claimants to power adhere to its guidelines. To further enhance its effectiveness, the following reforms are proposed: 1) Establishment of special fast track courts for expedited adjudication of MCC violation cases. 2) Exploration of providing statutory backing to the MCC, as recommended by the Standing Committee on Electoral Reforms. 3) Ensuring neutrality on the part of the ECI. 4) Granting greater independence to the Election Commission, akin to the CAG. 5) Implementation of a dynamic MCC through the establishment of a standing committee comprising members from the ECI, political parties, civil society, and legal experts to regularly review and update its guidelines.
The Electoral Bond Scheme was introduced with the Finance Bill 2017 and notified on January 29, 2018. It allows for anonymous donations to political parties through bearer bonds to increase transparency in political funding.
Its features include: 1) denominations from Rs 1000 to Rs 1 crore, 2) validity for 15 days, 3) purchase from SBI branches, 4) redemption within 15 days by political parties securing over 1% of votes, and 5) the bonds can be purchased by citizens, companies, etc., and 6) are issued in January, April, July, and October.
Recently,Supreme Court in the Association for Democratic Reforms & Anr. v. Union of India (UoI) & Ors., unanimously struck down the Electoral Bonds (EB) Scheme. The SC also struck down the amendments to several Acts (like RoPA, 1951; IT Act, 1961; Companies Act, 2013) that were undertaken to facilitate the Electoral Bond Scheme.
Rationale behind invalidation: Donor anonymity violated citizens’ right to information about political party funding
- Scheme violates the Right to Information under Article 19(1)(a) which guarantees the freedom of speech and expression.
- Money in politics creates unequal access to legislators and potential quid pro quo situations, leading to economic and political inequality. Transparency in political party funding is crucial for informed voting decisions.
- Disproportionate Restrictions: Curbing black money is neither a valid restriction under Article 19(2) nor does it pass the Test of Proportionality, as established in the Puttaswamy case (2017).
- SC also struck down amended Companies Act’s Section 182(3) allowing unlimited political contributions by companies, violating Article 14.
- Already alternatives like electronic transfers and Electoral Trusts were available
- Scheme provides for “selective anonymity” and “selective confidentiality” as the details of electoral bonds are available with the State Bank of India (SBI) and can also be accessed by the law enforcement agencies.
Significance of judgement
- Institution of ‘Hierarchy of Rights’: Prioritized voter’s right to information (Article 19(1)(a)) over donor anonymity.
- Applied “double proportionality” test, balancing right to information and right to privacy.
- SC mandates state to adopt “least restrictive” measures on fundamental rights, while exercising its legislative functions.
- It reaffirms the ‘definite’ and ‘structured’ proportionality test from the Puttaswamy case, guarding against arbitrary actions that could violate rights under the pretext of a ‘legitimate State interest’. Further, The Supreme Court can examine the State’s definition of ‘legitimate state interest’, behind any legislative action.
- Reaffirmed Right to Information as cardinal virtue of democracy : Voters have a right to information essential for exercising their freedom to vote
Thus, by striking down the electoral bonds scheme and reinstating key legal provisions, the court emphasizes the primacy of transparency and accountability in electoral financing.
Recently the High-level Committee on Simultaneous Elections, constituted under the chairmanship of Shri Ram Nath Kovind, has proposed simultaneous elections for Lok Sabha, state Assemblies, and local bodies in India.
Desirability of simultaneous elections:
- Cost Savings: Estimated savings of ₹4,000 crore for Central government and reduced campaign expenses for political parties.
- Governance Efficiency: Avoidance of ‘permanent campaign’ mode hindering policy making.
- Timely Policy Decisions: Election code of conduct delays key policy decisions.
- Efficient Resource Utilization:
- Reduced deployment of police and para-military forces.
- Key law enforcement personnel can focus on critical functions.
- Social Cohesion: reduce the divisive impact of regionalism, casteism, and communalism in mobilising voters.
- Reduction in Political Corruption:Frequent elections necessitate continuous fundraising.
- Mitigation of Horse Trading: Specific election periods minimize chances of horse-trading.
- Control over Freebies: Fewer elections lead to better financial management for state governments.
- Simplified Electoral Process:Using uniform electoral rolls across all elections saves time and money
- Enhanced Voter Engagement: Voter fatigue, resulting from frequent elections at different levels, can be alleviated by consolidating polls into a single event.
Challenges in its adoption:
- Federal Character Concerns: National issues overshadow regional ones, disadvantaging regional parties.
- Accountability: Elections serve as a periodic feedback mechanism for policies and governance. Simultaneous elections would limit this feedback to a 5-year cycle.
- Constitutional Amendments: substantial amendments to Articles 83, 85, 172, and 174 would be necessary, affecting the duration and dissolution of legislative houses .
- Security Implications: During simultaneous elections, deploying large security forces for election duty may weaken national security by diverting resources from border protection.
- Logistical Challenge: The Election Commission has to deploy ~30 Lakh EVMs and VVPAT machines to implement ONOE.
Way Forward: Simultaneous elections are beneficial for governance, cost-saving, and reducing corruption. The government should build consensus among political parties for successful implementation and then adopt panel recommendations with suitable amendments.
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.
