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Subject: Polity

Topic: Electoral System in India

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Ques. 1 : Representative democracy rests on periodical elections that are free and fair. Discuss in context of Indian elections?

Ans. India is the most populous democracy in the world, with about 70 crores of voters. Being a three-tiered democracy, with a central, state and local layer of governance, the depth of democracy is great. Representative democracy rests on periodic elections that are free and fair, that is, people vote without any coercion or fear; and all social groups are free to participate in decision without any discrimination.

Constitutional provisions, supplemented by laws made by Parliament are the basis for the conduct of elections and matters related to elections.

Part XV of the Constitution (Art.324-329) contains provisions related to elections are two RPAs:

• Representation of the People Act, 1950, which mainly deals with the preparation and revision of electoral rolls and
• Representation of the People Act, 1951 which deals, in detail, with all aspects of conduct of elections and post election disputes.

Other laws that confer powers on the EC are- Presidential and Vice-Presidential Elections Acts, 1952, Government of Union Territories Act, 1963, Government of the National Capital Territory of Delhi Act, 1991 and the Rules and powers under them.

Further, the Supreme Court of India held that where the enacted laws are silent or inadequate, the Election Commission has the residuary powers under the Constitution to act in an appropriate manner.

Constitutional Provisions

Art. 324 broadly speaks of the functions of the Election Commission and its composition. It confers the power of superintendence, direction and control of elections in the Election Commission. It includes the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and State Legislature; and elections to the offices of President and Vice-President of India.

The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, as the President may from time to time fix. President appoints the Chief Election Commissioner and other Election Commissioners Subject to any law made by Parliament.

When any Election Commissioner is appointed, the Chief Election Commissioner shall act as the Chairman of the Election Commission.

Before each general election to the House of the People, and to the Legislative Assembly of each State, and before the first general election and thereafter before each biannual election to the Legislative Council of each State having such Council, the President may also appoint, after consultation with the Election Commission, such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of their functions.

President determines the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners, subject to the provisions of any law made by the Parliament.

The manner of removal of the CEC and the ground for removal are the same as that of the Supreme Court judges- parliamentary vote followed by the Presidential consent. The conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment.

Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.

The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff that is necessary for the conduct of the elections.

Art: 325 says that there shall be one general electoral roll for every territorial constituency for election to either House of Parliament and State Legislature. It establishes equality among citizens for being enrolled as voters by affirming that no person shall be ineligible for inclusion in the electoral roll on grounds of religion, race, caste or sex.

Article 326 lays down adult suffrage as the basis for elections to the house of the People and to the Legislative Assemblies of States. The following are the qualifications to vote

• Should be a citizen of India
• Should be not less than eighteen years of age.
• is not disqualified under this Constitution or any law made by the appropriate Legislature on the grounds of

1. non-residence

2. unsoundness of mind

3. crime, or

4. corrupt or illegal practice.

Art. 327- confers on Parliament the power to make provision with respect to elections to federal and state Legislatures, subject to the provisions of the Constitution, on all matters relating to elections to Parliament or Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies etc.

Art. 328- confers on the State Legislature power to make laws with respect to elections to such Legislature, subject to the provisions of the Constitution and any law made in that respect by Parliament. Such powers include the preparation of electoral rolls and all other matter necessary for securing the due constitution of such House or Houses.

Art. 329- bars interference by courts in electoral matters. Notwithstanding anything in the Constitution—

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court;

(b) no election to either House of Parliament or to the House 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.

Any elector or candidate can file an election petition on grounds of malpractice during the election. An election petition can only be filed before the High Court, in respect of elections to the Parliament and State Legislatures. In respect of elections for the offices of the President and Vice President, such petitions can only be filed before the Supreme Court.

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