Context

Recently, in a letter to the President of India, a group of retired
bureaucrats and diplomats, in the context of recent incidents, expressed concern over the EC’s “weak-kneed conduct” and the institution “suffering from a crisis of credibility today”.

Introduction

India being the biggest democracy in the world needs a body that
guarantees free and fair elections and that is where the Election
Commission of India comes into the picture. Established in the year 1950, Article 324 of the Constitution provides that the power of superintendence, direction and control of elections to parliament, state legislatures, the office of the president of India and the office of vice-president of India shall be vested in the election commission.

But is the Indian highest electoral body free and fair as it should be?

What is E.C.I?

The Election Commission of India is an autonomous constitutional authority responsible for administering Union and State election processes in India.
The body administers elections to the Lok Sabha, Rajya Sabha, and State Legislative Assemblies in India, and the offices of the President and Vice President in the country.

Background

Part XV of the Indian constitution deals with elections, and establishes a commission for these matters.
The Election Commission was established in accordance with the Constitution on 25th January 1950.
Article 324 to 329 of the constitution deals with powers, function, tenure, eligibility, etc of the commission and the member.

Articles related to Elections

324 -Superintendence, direction and control of elections to be vested in an Election Commission.

325 -No person to be ineligible for inclusion in, or to claim to be
included in a special, electoral roll on grounds of religion,
race, caste or sex.

326 –Elections to the House of the People and to the Legislative
Assemblies of States to be on the basis of adult suffrage.

327 -Power of Parliament to make provision with respect to elections to Legislatures.

328 –Power of Legislature of a State to make provision with respect to elections to such Legislature.

329 -Bar to interference by courts in electoral matters.

Structure of the Commission

Originally the commission had only one election commissioner but after the Election Commissioner Amendment Act 1989, it has been made a multi-member body.
The commission consists of one Chief Election Commissioner and two Election Commissioners.
The secretariat of the commission is located in New Delhi.
At the state level election commission is helped by the Chief
Electoral Officer who is an IAS rank Officer.
The President appoints Chief Election Commissioner and Election Commissioners.
They have a fixed tenure of six years, or up to the age of 65 years, whichever is earlier.
They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India.
The Chief Election Commissioner can be removed from office only through a process of removal similar to that of a Supreme Court judge for by Parliament.

Functions

Election Commission of India superintendents, direct and control the entire process of conducting elections to Parliament and Legislature of every State and to the offices of President and Vice-President of India.
The most important function of the commission is to decide the election schedules for the conduct of periodic and timely elections, whether general or bye-elections.
It prepares electoral rolls, issues Electronic Photo Identity Cards (EPIC).
It decides on the location of polling stations, assignment of voters to the polling stations, location of counting centers, arrangements to be made in and around polling stations and counting centers and all allied matters.
It grants recognition to political parties & allot election symbols to them along with settling disputes related to it.
The Commission also has advisory jurisdiction in the matter of post-election disqualification of sitting members of Parliament and State Legislatures.
It issues the Model Code of Conduct in election for political parties and candidates so that the no one indulges in unfair practice or there is no arbitrary abuse of powers by those in power.
It sets limits of campaign expenditure per candidate to all the political parties, and also monitors the same.

Importance of ECI for India

The ECI has been successfully conducting national as well as state elections since 1952. In recent years, however, the Commission has started to play the more active role to ensure greater participation of people.
The Commission had gone to the extent of disciplining the political parties with a threat of derecognizing if the parties failed in maintaining inner-party democracy.
It upholds the values enshrined in the Constitution viz, equality,
equity, impartiality, independence; and rule of law in superintendence, direction, and control over electoral governance.
It conducts elections with the highest standard of credibility, freeness, fairness, transparency, integrity, accountability, autonomy and professionalism.
It ensures participation of all eligible citizens in the electoral process in an inclusive voter-centric and voter-friendly environment.
It engages with political parties and all stakeholders in the interest of the electoral process.
It creates awareness about the electoral process and electoral
governance amongst stakeholders namely, voters, political parties, election functionaries, candidates and people at large; and to enhance and strengthen confidence and trust in the electoral system of this country.

Powers of E.C.I

In details, these powers of Election Commission of India are:

Determining the Electoral Constituencies’ territorial areas throughout the country on the basis of the Delimitation Commission Act of Parliament.
Preparing and periodically revising electoral rolls and registering all eligible voters.
Notifying the schedules and dates of elections and scrutinising
nomination papers.
Granting recognition to the various political parties and allocating them election symbols.
Acting as a court to settle disputes concerning the granting of
recognition to political parties and allocating election symbols to the parties.
Appointing officers for inquiring into disputes concerning electoral arrangements.
Determining the code of conduct to be followed by the political parties and candidates during elections.
Preparing a program for publicising the policies of all the political parties on various media like TV and radio during elections.
Advising the President on matters concerning the disqualification of MPs.
Advising the Governor on matters concerning the disqualification of MLAs.
Cancelling polls in case of booth capturing, rigging, violence and
other irregularities.
Requesting the Governor or the President for requisitioning the staff required for conducting elections.
Supervising the machinery of elections throughout the country for ensuring the conduct of free and fair elections.
Advising the President on whether elections can be held in a state that is under the President’s rule, in order to extend the period of emergency after 1 year.
Registering political parties and granting them the status of national or state parties (depending on their poll performance).

Important initiatives taken by E.C.I

Introduction of voter ID’s to stop fraudulent voting.
EVM (electronic voting machine) was introduced in 2003 to stop the violence due to booth capturing agenda.
EVMs also solved the logistical problem of printing paper ballots, transporting and safely storing them, and then physically counting millions of votes.
To enhance transparency and credibility of the election process,
VVPAT was introduced with EVM at every polling station.
Systematic Voters’ Education and Electoral Participation program, better known as SVEEP was introduced in 2009 which is the flagship program of the Election Commission of India for voter education, spreading voter awareness and promoting voter literacy in India.
NOTA (none of the above) voting system was introduced to facilitate voters who support none of the candidates.
Totaliser was introduced, which is a mechanism in the voting
machines in India to hide the booth-wise voting patterns.
Street plays and Braille equipped EVM’s were introduced in the 2019 election for the awareness of rural, illiterate and blind voters.
Multiple mobile apps were launched to facilitate various kinds of
voters.

Issues with E.C.I

1. Flaws in the composition

The Constitution doesn’t prescribe qualifications for members of the EC.
Terms of the members of EC are not specified.
They are not debarred from future appointments after retiring or
resigning.
Election commissioners aren’t constitutionally protected with
security of tenure.

2. Violation of Model code of conduct

The EC has come under the scanner like never before, with increasing incidents of breach of the Model Code of Conduct in the 2019 general elections.
A.For example, Mission shakti speech – The letter mentioned the PM’s recent announcement of India’s first anti-satellite (ASAT) test. It is described as a serious breach of propriety amounting to giving unfair publicity to the party in power.
B.Launch of NAMO TV without license and thereby telecasting it throughout the 48 hour warm period before the elections which is not allowed under section 126 of the Representation of the People act.

3. Allegation of partisan role:

The opposition alleged that the ECI was favoring the ruling party by giving clean chit to the model code of conduct violations made by the prime minister.
Increased violence and electoral malpractices under influence of
money have resulted in political criminalization, which ECI is unable to arrest.
Allegations of EVMs malfunctioning, getting hacked and not
registering votes, corrodes the trust of the general masses in ECI.

4. Transfer of officials

Observers of ECI report to it about the conduct of certain
officials of the States where elections are to be held.
Transfer of an official is within the exclusive jurisdiction of
the government.
It is actually not clear whether the ECI can transfer a State
government official in exercise of the general powers under
Article 324 or under the model code.
Transfer of an official is within the exclusive jurisdiction of
the government.
It is actually not clear whether the ECI can transfer a State
government official in the exercise of the general powers under
Article 324 or under the model code.
Further, to assume that a police officer or a civil servant will be able to swing the election in favour of the ruling party is extremely unrealistic and naive.

5. ECI’s intervention in administrative decisions

According to the model code, Ministers cannot announce
any financial grants in any form, make any promise of
construction of roads, provision of drinking water facilities,
etc or make any ad hoc appointments in the government.
departments or public undertakings.
These are the core guidelines relating to the government.
But in reality, no government is allowed by the ECI to
take any action, administrative or otherwise, if the ECI
believes that such actions or decisions will affect free and
fair elections.
A recent decision of the ECI to stop the Government of
Kerala from continuing to supply kits containing rice, pulses,
cooking oil, etc is a case in point.
The Supreme Court had in S. Subramaniam Balaji vs
Govt. of T. Nadu & Ors (2013) held that the distribution of
colour TVs, computers, cycles, goats, cows, etc, done or
promised by the government is in the nature of welfare
measures and is in accordance with the directive principles of state policy, and therefore it is permissible during an election.
So, how can the distribution of essential food articles which are used to stave off starvation be electoral malpractice?

Way Forward

Strengthening the EC itself:

The constitutional protection given to CEC must also be given to the other election commissioners.
To stop the Favouritism to any of the political parties or candidates there must be a cooling off period from any political or constitutional appointments for the retiring CEC’s and EC’s post retirement.
Institutionalize the convention where the senior most election
commissioner should automatically be elevated to the post of chief election commissioner in order to instill a feeling of security in the minds of EC’s and that they are insulated from the executive interference.
The expenditure of the commission must be charged upon the
consolidated fund of India for its unbiased working.
The dependence on DOPT, Law Ministry and Home ministry must be reduced and the ECI should have an independent secretariat for itself.
The ECI must be vigilant and watchful against the collusion at the lower level of civil and police bureaucracy in favour of the ruling party of the day.
VVPAT must be used in all the polling booths to curb down the
controversy related to the bugged EVM’s.
The moral code of conduct must be strengthened and special
permanent powers be given to ECI for the better implementation of rules and conducts.
ECI must modernize itself technically and therefore must punish the people flaunting the MCC on social and visual audio platforms.

References:

The Hindu
The Indian express
Wikipedia
www.eci.gov.in
The times