Virtues of commission

Whereas other structures of the state like the police, bureaucracy and the army inherited the impersonal and coercive character of colonial governance, the EC was designed to ensure a fundamental rupture that independence from colonial rule was to bring in its wake. Other public institutions such as the National Commission for Minorities, National Commission for Women, National Commission for Scheduled Castes and Scheduled Tribes are statutory bodies and owe their origins to specific Acts of Parliament and have as their objectives the protection of the rights of particular groups. The EC is a constitutional body deriving its powers from the Constitution itself, laid out in Articles 324-329.

Numerous court decisions have reinforced the EC’s power. A Supreme Court judgement of May 2002 in the case Union of India vs. Association for Democratic Reforms enlarged the scope of Article 324 giving the EC ‘residuary powers’ ‘where law was silent’ and also recognised the right of the citizen-voter to know the antecedents of the contestants. The Supreme Court interpreted the expression ‘superintendence, direction and control’ in Article 324 as empowering the EC to act in contingencies not provided for by law, and to pass necessary orders for the conduct of the election — for instance, whether a re-poll should be held or not at a particular polling station (Mohinder vs Chief Election Commissioner SC 1978); to decide disputes relating to the allotment of symbols to political parties (Sadiq vs Election Commissioner SC 1972), to recognise such parties or to derecognise them for such purpose (SSP vs. Election Commissioner SC 1967), to determine the status of rival groups within the same party, and to determine the effect of merger or separation of parties for this purpose. In 1993 the SC held that if the EC is of the opinion that having regard to the disturbed conditions of a state or a part of it, free or fair elections cannot be held, it may postpone the elections (Digvijaya vs Union of India, SCC 1993).

The last mentioned function of the EC drew much attention in the latter half of 2002, throwing up a situation of conflict between the commission and the NDA government, especially its primary constituent, the BJP. The event in question was the dissolution on July 19 2002 of the Gujarat Vidhan Sabha and the continuation of Narendra Modi as the caretaker chief minister till fresh elections could be held. The BJP hoped that under Article 174 of the Constitution which required that six months should not lapse between the last sitting of the legislative assembly in one session and the date appointed for the first sitting in the next session, the election for the new assembly should be held before October 3 2002. At the time of dissolution, Gujarat was still recovering from the communal conflict which left thousands of Muslims dead and homeless. Between July 31 and August 4 2002, the EC sent a team of officials to Gujarat followed by a visit of the entire three-member commission to decide on a possible time frame of elections. Contrary to the Gujarat government’s argument that only 12 out of its 25 districts were affected, the EC observed that almost 80 per cent of the state’s administration remained unstable, 154 of the 182 constituencies were affected by riots, which included 151 towns and 993 villages. The large numbers of riot-affected who were displaced or missing made the preparing of electoral rolls impossible at an early date.

In a detailed order of August 16 2002, the EC accepted that under Article 174, elections should normally be held before the expiry of six months. But in Gujarat the EC concluded that, in the context of incomplete rolls and missing electorates, elections could not be held before the end of November 2002. EC officials were firm: even if a state assembly is dissolved, or comes to the end of its term, the opportune time of the polls can be decided by the EC alone.

The presidential reference sent for the opinion of the Supreme Court by the NDA government, raised doubts with regard to the ‘constitutional validity’ of the EC’s order, as amounting to ‘non-compliance with the mandatory requirement envisaged under Article 174(1) of the Constitution’. The Supreme Court rejected the Central and Gujarat governments’ indictment of the EC’s decision. While denying that Article 174 put any kind of limits on the EC’s powers under Article 324, the Supreme Court held that the holding of elections ‘is the exclusive domain of the Election Commission under Article 324 of the Constitution’.

The credibility of the EC was enhanced through subsequent elections — in J&K, Bihar and West Bengal. However, challenges remain and the commission must continue to grapple with the criminalisation of the electoral arena and the difficulties of preparing an inclusive electoral roll such that the electoral process does not exclude any person or group.

The writer teaches in Delhi University, and is the author of a Nehru Memorial Museum & Library monograph ‘Institutions and Democratic Governance: A Study of the Election Commission and Electoral Governance in India’