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Published : April 29, 2010 | Author : nagnath_borphalkar
Category : Miscellaneous | Total Views : 18387 | Rating :

  
nagnath_borphalkar
Nagnath Chandrakant Borphalkar DOB - 15.02.1984 Education - LLM Nationality - Indian Address - at/ Po - Borphal, Ta - Ausa, Dist - Latur Maharashtra - 413520. Mobile - 9766753430
 

Indian Democracy & Role Of Election Commission

The Preamble to the Constitution declares India to be a Democratic, Republic. All of us who are working for protection & upholding the civil rights of the citizens of India are deeply concerned with democratic polity of the country. “Democracy” is regarded as a basic feature of the Constitution as held in the

Indira Nehru Gandhi V/s. Raj Narayan[1]
One of the most important features of the democratic polity is elections at regular intervals. Elections constitute the signpost of the democracy; these are medium through which the attitudes, values and beliefs of the people towards their political environment are reflected. Elections are the central democratic procedure for selecting and controlling leaders. Elections grant people a government and the government has constitutional right to govern those who elect it. Elections symbolize the sovereignty of the people and provide legitimacy to the authority of the government. Thus, free & fair elections are indispensable for the success of the democracy.

The growth of democracy is possible only when peoples are entitled to participate in the democratic process pf the country. According to Art. 326 elections in India are conducted on the basis of the “Adult Suffrage”, which is most important pillar of the democracy.

In order to ensure free & fair elections the Constitution establishes the Election Commission. In 1950, the Election Commission has established in India. This is a body autonomous in character and insulated from political pressures and executive influence. Care has been taken to ensure that the Election Commission work as an independent body free from external pressures from the party in power or executive of the day.[2] It is duty of the Election Commission to carry free & fair elections to the various legislative bodies in the country and guarantee the growth of democracy. There are mixed populated states. There are native people as well as others who are racially, linguistically and culturally different but to supervise, organize and conduct election the Commission is setup for All – India Level.

Election Laws in India are based on the basic values of constitutional democracy. In order to protect these values from unnecessary legislative & executive interference the framers of the Constitution incorporated it as constitutional provisions. So when the question regarding amendment of election laws and its validity challenged before the court of law it may necessary to examine that, whether amendment is against basic values of democracy of the Constitution.[3]

The Election Commission has constitutional status.[4] The superintendence, direction & control of elections to be vested in the Election Commission. It deals with the preparation of rolls conducting all elections of Parliament and State Legislature. The Election Commission consists of:
a) Chief Election Commission
b) Other such numbers of Election Commissioners as fixed by the President from time to time.
c) There shall be a Regional Election Commissioner.
d) The President or Governor on request by the Election Commission or Regional Election Commissioner shall make available such staff to discharge functions effectively.
e) The Election Commissioner or Regional Election Commissioner shall not be removed except on the recommendation of the Chief Election Commissioner.
f) Their tenure of service, other conditions shall be decided by the President.

Functions:
The Election Commission performs following functions:

a) The superintendence, direction & control of elections.
b) To conduct elections of various bodies.
c) To advice the President or Governor of a State for disqualification of any member.
d) To pass any order in respect of the conduct of the elections when there is no law or rule made under the law.

In the case of, Election Commission of India v/s.Ashok Kumar [5]
Supreme Court observed that, ‘superintendence, direction & control’ these words are enough to include all powers necessary for smooth and effective working, conduct of elections so that the will of the people may be expressed. The Constitution[6] bars the interference of the Courts in the matters of elections. The Election Petitions are allowed and to be presented before such authority as provided by the law or legislature.

Role of Election Commission:
1. Guardian of Free & Fair Elections.
One of the most important features of the democratic polity is elections at regular intervals. Democracy is the

“Government of the people, By the people, And for the people”.

Holding periodic free & fair elections are essentials of democratic system. It is part of basic structure of the Constitution. It has been held in T. N. Sheshan V/s Union of India[7]. The Commission has taken many efforts for the success of elections and thereby democracy. So it is regarded as Guardian of both, democracy & free & fair elections.

2. Model Code of Conduct
The Election Commission is regarded as guardian of free & fair elections. In every election, it issues a Model code of Conduct for political parties and candidates to conduct elections in free & fair manner. The Commission issued its First code in 1971 (5th Election) and revised it from time to time. It lay down guidelines for conduct of political parties & candidates during elections. However, there are instances of violation of code by the political parties and complaints are received for misuse of official machinery by the candidates.

The Commission held responsible to Mr. Narendra Modi and Smt. Sonia Gandhi for violation of Model code of Conduct by making controversial remarks during election campaign in 2007 Gujarat Assembly polls.

In I.D. Systems (India) Pvt. Ltd. v/s. Chief Election Commissioner[8], the Kerala High Court held that the object of model code of conduct is not to stop all governmental activities but only those actions which may directly influence a section of electors need to be prevented.

The need for such code is in the interest of free and fair elections. However, the code does not have any specific statutory basis. It has only a persuasive effect. It contains what, known as “rules of electoral morality”. But this lack of statutory backing does not prevent the Commission from enforcing it. It has power to enforce drawing force under Art. 324.[9]

3. Registration of Political Parties
The party system is an essential feature of the Parliamentary democracy. Law regarding to this registration process enacted in 1989 and number of parties got registered with Commission. It helps to avoid confusion and headache of the administrative machinery as well as confusion of the electorate. It ensures that political parties can practice democracy only by their registration.

4. Limits on Poll Expenses
To get rid of the growing influences and vulgar show of money during elections the Election Commission has made many suggestions in this regard. The Election Commission has fixed the legal limits on the amount of money which a candidate can spend during election campaigns. These limits have been revised from time to time. The Election Commission by appointing observers keeps an eye on the individual account of election expenditure. The contestants are also required to give details of expenditure with 30 days of declaration of results. However, political parties do not adhere to the financial ‘Lakshman Rekha’ as huge amount are spent by parties under the garb of their supporters.

The campaign period was reduced by the Election Commission from 21 to 14 days for Lok Sabha and Assembly elections; it is for to trim down election expenditure. The Election Commission’s this attempt to impose these measures has been a move in the right direction.[10] Moreover, Election Commission takes details of his assets on affidavit at the time of submitting nomination paper.

In Common Cause: A registered Society v/s. Union of India[11], it was pointed out that, in India elections are fought on the basis of money. The Court ruled that, purity of election is fundamental to the democracy and Commission can ask the candidates about the expenditure incurred by them and political party for this purpose.

5. Use of Scientific and Technological Advancements.
The Election Commission trying to bring improvements in election procedures by taking advantage of Scientific and Technological Advancements. The introduction of EVM – Electronic Voting Machines is one of the steps in that direction. It was used with view to reducing malpractices and also improving the efficiency. On experimental basis it was firstly tries in the State of Kerala in 1982 for Legislative Assembly Elections. After successful testing and legal inquires the commission took historic decision to go ahead and start use of EVMs.

The Election Commission making use of Information Technology launched a web site of its own on 28TH February, 1998 i.e. www.eci.gov.in. It helps to provide accurate information, management, administration and instant results of the elections. In 1998, Election Commission taken a bold step and decided programme for ‘computerizations’ of the electoral rolls.

To prevent electoral fraud, in 1993 EPICs – Electorals Photo Identity Cards were issued. In, 2004 elections it was mandatory to possess card. During 2007 Punjab Assembly Elections, Parneet Kaur – MP from Patiala could not cast her vote till late afternoon as she had misplaced her voter’s card. The Karnataka become the first State to prepare electoral rolls with photographs of voters in 2008 elections. The State Election Commission developed the electoral roll management software called ‘STEERS’[12].

6. Multi –Member Election Commission
There was a long standing demand to make the Election Commission a multi member body. The Ho. Supreme Court in the S. S. Dhanoba v/s.Union of India[13]
Held that, Election Commission entrusted with vital functions and is armed with exclusive and uncontrolled powers to execute them, it is both, necessary & desirable that, the powers are not exercise by one of individual, however wise he may be. It also conforms to the tenets of democratic rule.

The Constitution Amendment Act, 1993 made Election Commission to be multi member body. A single member Election Commission would have no longer unbridled powers. In view of the large size of the country and the huge electoral the Election Commission also made a proposal for the appointment of Regional Election Commissioners to different zones to reduce its burden.

7. Election Commission – A Tribunal for Adjudication
There is bar to the Court for interference in the electoral matters[14]. Then the question arises is the Election Commission a tribunal? Can Supreme Court hear appeal from the Commission? U/A – 136 Commission can be treated as tribunal while adjudicating disputes?

In answering the questions, the Supreme Court held that, Commission is a Tribunal for the purpose of Article 136 while deciding such a controversy. Such issue decided in the case of A.P.H.L. Conference, Shillong v/s. W. A. Sangama[15].

Further, Court speaking about the powers and functions of the Commission said that, regulating loud speaker for electioneering and order issued for that is valid, as held in the Mohinder Singh v/s. Chief Election Commissioner[16]

8. Checking Criminalization of Politics.
Criminalization of Politics is a grave problem in India. This menance began in Bihar and gradually spread over the nation. In 20003, a law was introduced to prohibit the election of criminals to the legislative bodies. However, persons with criminal background continue to hold seats in Parliament & State Assemblies. This lead to very undesirable and embarrassing situation when law breakers become law makers.

The Commission has expressed its serious concern over anti - social activities. Commission made norms and recommendation to the government to curb the menace of criminalization of politics. They observed that,

“All political parties to reach a consensus that, no person with a criminal background will be given the party ticket”.

The candidates are obliged to submit an affidavit in a prescribed form declaring their criminal records, including convictions, acquittals charge pending cases. The information so furnished by the candidates shall be disseminated to the public, and to the print and electronic media.

9. Right to Know About Candidates.
In order to make democracy healthy & unpolluted, citizens have right to know about Candidates to whom they prefer as their Representative. To stop criminalization and in the public interest the past of candidate should not kept in dark. In the case of

Union of India V/s Association for Democratic Reforms[17]
Ho. Supreme Court agreed with Delhi High Court and in judgment directed the Election Commission to take necessary information on affidavit from candidates as it is part of his nomination paper. Election Commission must take such information which is mandatory including;
a) His/her criminal antecedents, whether convicted or acquitted? Whether punishable with imprisonment or fine?
b) Prior to 6 months of filing nomination paper he is an accused of any offence punishable with imprisonment of 2 years? Whether Court has taken its cognizance, if so details thereof.
c) The assets (movable, immovable, bank balance) of a candidate and his or her spouse and dependants.
d) Liabilities, if any, particularly over dues of any public financial institutions or government.
e) Educational qualification of the candidate.

However, failing to furnish required information on nomination papers shall be liable to reject nomination papers by the Returning Officer. Furnishing wrong and incomplete information also liable for penal action. This information is available to the general public, and to the print and electronic media, free of cost.

There should be provision compelling winning candidates periodically to report his work to constituency and measures taken by him for people grievances as remedy. This sense of accountability must be given legal shape and punishment for default. There are other important innovations to make specially elections clean, candidate competent and incorruptible. Invigilation is important from the beginning to the end of the election process.[18]

10. Role of Advisor.
Recently, the Election Commission has acted in the role of advisor. The Commission issued notice to Mr. Varun Gandhi and Bhartiya Janata Party for violation of Model code of Conduct by offensive speech on 7th and 8th March 2009 at Pilbhit District in Uttar Pradesh. However, the Chief Election Commissioner N. Gopalswami said,[19]

“We have seen the tape and are satisfied.
Hence we passed the advisory.
We have done our duty.
Our duty ends there”.


Further Commission advised him take it or leave it. After this , Election Commission letting the abusing politicians like Lalu Prasad Yadav, Rabri Devi, Udhav and Jaswant Singh and many more, simply advising them ‘self-restraint’ but without any concrete action, for their objectionable voice against each other in public during election campaign.[20]

11. Prohibition on Publication
Moreover, the Commission issued an order for prohibition of publication and disseminating of results of opinion polls (Exit Polls).

12. Criticism
The democracy is regarded as basic structure in India, but if we observe the situation during the election, it seems that there is no democracy. The notion of Democracy is changed as:
Government off the people,
Buy the people, and
Far the people.

In the latest elections the Commission affiliated some of the electorals differently to the election of Lok Sabha and Legislative Council of State, which causes inconvenience to the people. Commission carried out number of reforms in the process but still it is not proved effective and disputes are arising for its ineffective performance.

13. Conclusion:
The Commission over the years has conducted number of laudable electoral reforms to strengthen democracy and enhance fairness of elections. The commission has taken best steps to stop malpractices during elections by using advance technology. However, all these efforts taken by the Election Commission will help to grow democracy and its confidence in the minds of people. The Supreme Court always examined the legal and other issues of elections and always emphasized to protect the fundamentals of democracy, which reflected through its judgments. The Commission should be empowered to punish the greedy politicians for violation of Code, Laws, and Orders of the Courts. A country’s administration should be governed not by the bullet but by the ballot.
--------------------------------------------------------------------------------
[1] AIR 1975 SC 2299
[2] Indian Constitutional Law, Prof. M. P. Jain, 5th Edition, 2009, Pg. 806.
[3] PUCL v/s. Union of India, AIR 2003 SC 2363
[4] Article 324
[5] AIR 2000 SC 2979
[6] Art. 329
[7] AIR 1995 SC 852
[8] AIR 2006 Ker 229
[9] C. Rajshekhar, Ensuring Free & Fair Elections : Role of Election Commission of India, Indian Bar Review, Vol XXVI (3 & 4)1999, Pg. 103
[10] http://www.mainstreamweekly.net/article1049.html
[11] (1996) 2 SCC 752
[12] http://www.mainstreamweekly.net/article1049.html
[13] AIR 1991 SC 1745
[14] Supra note 5
[15] AIR 1997 SC 2155
[16] AIR 1978 SC 851
[17] (2002) 5 SCC 294
[18] J. Krishna Iyer, Law & Life, Universal Law Publication, 2008 Edition, Pg. 123 – 124.
[19] Tuesday , Mar 24, 2009, http://www.indianexpress.com/news/its-an-advisory-take-it-or-leave-it-ec-on-varun/438472/0
[20] http://www.merinews.com/article/advisory-role-of-election-commission

Authors contact info - articles The  author can be reached at: nagnath_borphalkar@legalserviceindia.com




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