Regulating the Unlegislated: Redefining the Powers of the Election Commission of India
Updated: Oct 19, 2020
This is Part IV of the Election Series
- Pratik Dixit*
In 181 B.C., the lex Cornelia Baebia was enacted by the Roman Republic with an intention to curb electoral corruption and particularly, to restrain the ability of a candidate to bribe the voters in order to get elected to magistracy. Nearly two millenniums later, electoral democracies across the globe are still trying to formulate a viable solution to tackle the menace of political corruption. One of the feasible solutions is to create electoral management bodies tasked with administering elections. Many electoral democracies, including India, have adopted this model in their democratic architecture in order to streamline the electoral process.
Article 324 of the Constitution of India stipulates that the Election Commission of India (‘ECI’) shall have a pre-eminent domain of superintendence, direction, and control of elections in India. However, the powers of the ECI under Article 324 are subject to Article 327 of the Constitution, which vests the power to make provisions with respect to elections with the Parliament of India. Therefore, when certain issues remain unaddressed by the legislature, the ECI possesses an enormous repository of powers to legislate on such electoral matters by virtue of Article 324. It has been argued that the ECI, by virtue of such powers, must not only oversee the smooth conduct of elections but also ensure that certain democratic norms and rules are being adhered to by the candidates and parties.
During the recently concluded General Elections, the ECI used its plenary powers under Article 324 to bar certain candidates from campaigning for a temporary period for indulging in corrupt practices. In this essay, I will argue that the ECI has to use its powers with reference to the election law enacted by the legislature, namely, the Representation of People Act, 1951 (‘RPA’). Furthermore, I contend that by barring the candidates from campaigning during the elections, the ECI has acted in a manner which is contrary to the express intention of the RPA.
This essay begins with a general overview of the constitutional provisions enumerating the powers of the ECI. Section I will briefly discuss the overall scheme of the RPA and the limits it seeks to impose on the powers of the ECI. Section II will analyse and situate the campaign ban orders issued by the ECI within the context of constitutional jurisprudence evolved by the Supreme Court of India over the years. Lastly, the essay will conclude that the legislature must further elaborate upon the extent and scope of powers of the ECI to resolve the ensuing conundrum.
I. The extent and scope of Election Commission’s powers
During the recently concluded General Elections, the ECI passed orders barring candidates such as Maneka Gandhi, Azam Khan, and Giriraj Singh from campaigning for making communal speeches. In all these cases, the ECI reasoned that the aforesaid candidates had acted in violation of the unenforceable Model Code of Conduct (‘MCC’) and had resorted to ‘corrupt practices’ by appealing to ‘caste or communal feelings for securing votes’. Therefore, the ECI invoked its powers under Article 324 to bar the aforementioned candidates from publicly campaigning for a temporary period during the elections. However, I will argue that the ECI has no power to impose campaign bans on candidates.
The Supreme Court of India has tried to elucidate the extent and scope of powers of the ECI under Article 324. The general rule laid down by the apex court with regards to the powers vested in the ECI is as follows: the plenary powers vested with the ECI under Article 324 are subject to a valid law enacted by the Parliament under Article 327. The Parliament has enacted the RPA which governs the entire election process, commencing from the issuance of the notification of elections up to the final resolution of disputes arising out of the elections. As per the scheme of the RPA, an election petition can be filed in a High Court under section 81 read with section 100 of the RPA if the returned candidate has engaged in ‘corrupt practices’. Section 123 of the RPA enumerates ‘corrupt practices’, which, among other things, include an appeal by a candidate to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language.
The overall scheme of the RPA makes it abundantly clear that only a High Court , and not the ECI, has the power to determine the culpability of candidates engaging in corrupt practices under section 99 of the RPA when an election petition is filed. Under section 99 of the RPA, the High Court has to give ‘a finding whether any corrupt practice has or has not been proved to have been committed at the election, and the nature of that corrupt practice.’ Since the consequence of an allegation of a corrupt practice being proved might be the nullification of the election of a returned candidate, the allegation must be proved beyond reasonable doubt. . It becomes abundantly clear that only a High Court, and not a quasi-judicial body such as the ECI, has the necessary judicial competence to ascertain the allegations of corrupt practices made against a returned candidate.
I will further argue that the overall scheme of the RPA does not expressly prohibit a candidate from indulging in corrupt practices– the RPA comes into play only when a candidate who has indulged in corrupt practices is returned. Such an election can be set aside by a High Court if it finds that the returned candidate did indeed indulge in corrupt practices. However, while imposing the campaign ban on candidates such as Maneka Gandhi, the ECI observed that they violated section 123 of the RPA. By doing so, the ECI has acted in contravention to the express intention of the RPA and usurped the power of the High Court.
As per Article 329(b), the provisions of RPA dealing with election petitions come into play only when the whole electoral process is complete. Further, it must also be pointed out that an election petition can be filed under section 81 read with section 100 only to challenge the election of the returned candidate. Thus, it could be argued that the RPA is silent with regard to corrupt practices committed by the defeated candidates during the course of the election campaign. Consequently, the ECI could use its plenary powers under Article 324 to censure defeated candidates who act in violation of section 123. However, this reasoning does not hold enough ground in light of the fact that the RPA differentiates between corrupt practices and electoral offences. This difference primarily arises from the fact that corrupt practices have to be assessed by a High Court when an election petition is filed before it and could cost a returned candidate her election while on the other hand, electoral offences primarily expose a person to penal consequences. By reading the RPA harmoniously, it can be inferred that the ECI can always proceed with a criminal case against any person who promotes enmity between classes or communities in connection with elections under section 125 of the RPA.
To summarise , in this section I have argued that where the RPA has express provisions for adjudication of disputes involving candidates who have indulged in corrupt practices by a High Court, the ECI has no powers under Article 324 of the Constitution to do the same. Consequently, the ECI has no powers under Article 324 to bar a candidate from campaigning for engaging in corrupt practices. However, the ECI always has the option of pursuing a criminal case against them for violation of section 125 of the RPA.. This reasoning also accounts for the higher standards that the RPA seeks to impose on a returned candidate.
II. Campaign Bans: Interfering with the process of election
Over the years, the Supreme Court has held that the expanse of Article 329(b) is wide enough to bypass the writ jurisdiction of the High Courts and the Supreme Court. In N P Ponnuswami v Returning Officer (‘Ponnuswami’), the issue before the apex court was whether a High Court could interfere with the election process by virtue of Article 226. The court held that Article 329(b) was enacted by the Constituent Assembly to ensure that the process of election is not unnecessarily protracted. The court further observed that the scheme of election law, in general, entails that no significance should be attached to anything which does not affect the ‘progress of the election’.
In the seminal case of Mohinder Singh Gill v. Chief Election Commissioner (‘M S Gill’), the apex court further expounded upon the ratio of Ponnuswami. The court held that the ECI can generally take two types of decisions during the election: firstly, decisions which interfere with the progress of the election process; and secondly, decisions which accelerate the completion of the election or are in furtherance of the election. Thereafter, the court held that the bar to interference by courts under Article 329(b) does not apply if the action of the ECI hinders the progress of elections. The court was also of the opinion that an order of the ECI will not be immune from judicial review if it prevents ‘an election, not promoting it and the Court’s review of that order will facilitate the flow, not stop the stream’. Thus, the High Courts and the Supreme Court can exercise their writ jurisdiction if the ECI’s actions are not in furtherance of the election.
Assuming that the ECI has the authority to temporarily bar a candidate from campaigning under Article 324, I argue that such an action of the ECI interferes with the progress of the election. When the ECI bars a candidate from campaigning, it effectively bars such candidate from reaching out to voters and canvassing votes. Political campaigning is one of the core political processes in a contemporary democracy. An election campaign is a dialogue between a candidate and the voters, where the candidate conveys her strengths and merits, policy preferences, as well as the weaknesses and faults of the opposition. Further, there is empirical evidence to show that voters gather crucial information about the candidate such as her background and personality during the phase of campaigning. Thus, when the ECI bars a candidate from campaigning, it impedes the flow of elections as it stops the dialogue between the candidate and the voters.
In such a scenario, the decision of the apex court in M S Gill will be applicable. Since the ECI’s decision of barring candidates from campaigning impedes the flow of the election, the High Courts or the Supreme Court would be able to exercise their writ jurisdiction to review the decision during the course of the election itself. This may unnecessarily protract the whole election process and consequently deprive the electors of speedy representation in the legislature. If a candidate who engages in corrupt practices is returned, her election can be challenged by way of an election petition. In the meanwhile, the ECI always has an option of initiating criminal proceedings against any person who flares communal hatred under section 125 of the RPA along with the relevant provisions of the Indian Penal Code, 1860.
This essay has analysed the recent campaign ban orders issued by the ECI and situated them within the context of the constitutional jurisprudence evolved over the years by the Supreme Court of India. I have argued that the ECI has acted in contravention to the express intention of the legislature by barring those candidates from campaigning who were deemed to be indulging in corrupt practices during the elections. However, the ECI should not have encroached upon the powers of a High Court as envisaged under the RPA. It should have instead proceeded with a criminal case against the candidate, returned or otherwise, for violation of section 125 of the RPA. I have further argued that in light of Supreme Court decisions such as M S Gill and Ponnuswami, the ECI orders barring a candidate from campaigning may impede the flow of elections and may consequently be subject to judicial review. This may unnecessarily protract the overall election process and deprive the electorate of an effective representation.
The extent and scope of powers of the ECI under Article 324 have been a contested issue since Independence. Though the ECI requires certain legislative as well as quasi-judicial powers to maintain a conducive atmosphere for holding free and fair elections, the present legal regime has failed to adequately define the same. As the position of law presently stands, the ECI can only regulate the matters left unlegislated by the RPA. Further, there still remains a considerable grey area as to the scope and extent of Article 324 of the Constitution which would justify vesting the powers to impose campaign bans on candidates with the ECI. This conundrum can be resolved by statutorily recognizing the powers of the ECI in respect of the MCC and other directions such as temporarily barring candidates from campaigning.
*Pratik Dixit is a 4th year student at the National Law School of India University, Bangalore.
 Adolf Berger, Encyclopedic Dictionary of Roman Law (American Philosophical Society 1953) 550.
 Michael Pal, ‘Electoral Management Bodies as a Fourth Branch of Government’ (2016) 21 Review of Constitutional Studies 85, 86.
Constitution of India 1950, art 324(1). (It reads as follows: ‘The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission.’)
 Constitution of India 1950, art 327.
 Ujjwal Kumar Singh and Anupama Roy, ‘Regulating the Electoral Domain: The Election Commission of India’ (2018) 64(3) Indian Journal of Public Administration 1, 3.
 Manjari Katju, ‘Election Commission and Functioning of Democracy’ (2006) 41(17) Economic & Political Weekly 1635, 1637.
 For example, see ‘Maneka Gandhi, Election Commission of India’ Order no. 437/UP-HP/2019 <https://eci.gov.in/files/file/9935-commissions-order-dated-15042019-to-smt-maneka-sanjay-gandhi-and-to-shri-azam-khan-along-with-letter-to-all-chief-electoral-officers/?do=download&csrfKey=3701c17fb5b20ba66c421ed6e906c58b>.
 Mohinder Singh Gill v Chief Election Commissioner (1978) 1 SCC 405 (M S Gill); A C Jose v Sivan Pillai (1984) 2 SCC 656; Election Commission of India v State Bank of India Staff AIR 1995 SC 1078.
 The Representation of the People Act 1951, s 123.
 The Representation of the People Act 1951, s 99.
 Manmohan Kalia v Yash (1984) 3 SCC 499; M J Jacob v A Narayanan (2009) 14 SCC 318; Ebrahim Suleiman Sait v M C Mohammad (1980) 1 SCC 398.
 Theodore Waldman, ‘Origins of the Legal Doctrine of Reasonable Doubt’ (1959) 20(3) Journal of the History of Ideas 299, 300.
 Constitution of India 1950, art 329(b). (It reads: ‘Notwithstanding anything in this Constitution –
(b) no election to either House of Parliament or to the House or 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.’)
 See Ebrahim Sulaiman Sait v M C Muhammad AIR 1980 SC 354 . (The difference was elucidated by the Supreme Court in the following words: ‘It is true that the act is called a corrupt practice in section 123(3A) is also what constitutes an electoral offence under section 125 but to attract Section 123(3A) the act must be done by the candidate or his agent or any other person with the consent of the candidate or his agent, and for the furtherance of the election of that candidate or for prejudicially affecting the election of any candidate, but under section 125 any person is punishable who is guilty of such as act and the motive behind the act is not states to be an ingredient of the offence.’)
 The Representation of the People Act 1951, s 125. (It reads as follows: ‘Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of citizens of India shall be punishable, with imprisonment for a term which may extend to three years, or with fine, or with both.’)
 In Ajay Maken v Adesh Kumar Gupta (2013) 3 SCC 489, the Supreme Court held that an election petition can be filed only to nullify the election of the returned candidate or for further remedies stated under section 101 of the RPA.
 N P Ponnuswami v Returning Officer AIR 1952 SC 64.
 M S Gill (n 8) 428.
 M S Gill (n 8) 430.
 Rudiger Schmitt-Beck and David Farrell, ‘Studying Political campaigns and their effects’ in Rudiger Schmitt-Beck and David Farrell (eds), Do Political Campaigns Matter? (Routledge 2002) 5.
 Richard Lau and David Redlawsk, How Voters Decide: Information Processing during Election Campaigns (Cambridge University Press 2006) 102.