The Election Commission of India

1. Articles 324 to 329 at a glance

• Article 324. Superintendence, direction and control of the preparation of electoral rolls and the conduct of elections to Parliament, State legislatures, and the offices of President and Vice-President, vested in the Election Commission.
• Article 325. One general electoral roll for each constituency; no one excluded on grounds only of religion, race, caste or sex.
• Article 326. Elections on the basis of adult suffrage. The voting age was lowered from twenty-one to eighteen by the Sixty-first Amendment, 1988.
• Articles 327 and 328. Parliament, and subject to it the State legislatures, may make laws on elections: the Representation of the People Acts of 1950 and 1951, and the Delimitation Acts.
• Article 329. The bar on interference by courts (section 6 below).

Elections to panchayats and municipalities are conducted by State Election Commissions under Articles 243K and 243ZA, not by the Election Commission of India.

2. Composition and independence (Article 324(2) to (6))

The Commission consists of the Chief Election Commissioner and such number of other Election Commissioners as the President fixes. Since 1993 it has been a three-member body. Appointment is by the President, subject to any law made by Parliament.

• The Chief Election Commissioner can be removed only in the manner and on the grounds of a Supreme Court judge (Article 324(5)).
• His conditions of service cannot be varied to his disadvantage after appointment.
• The other Election Commissioners can be removed only on the recommendation of the Chief Election Commissioner.
• The President or Governor must make staff available on request (Article 324(6)).

3. Mohinder Singh Gill (1977): the scope of Article 324

After counting in a Punjab parliamentary constituency was disrupted by violence, the Commission cancelled the whole poll and ordered a fresh election. In Mohinder Singh Gill v. Chief Election Commissioner, 1977 INSC 227, (1978) 1 SCC 405, a Constitution Bench held:

• Article 324 is a plenary power. Where the law made by Parliament is silent, the Commission may act in its own right to secure a free and fair election. But where a law exists, the Commission must act in accordance with it, not against it.
• The power must be exercised fairly and not arbitrarily.
• “Election” covers the whole process from the notification to the declaration of the result, and Article 329(b) bars writ petitions challenging steps taken in that process. The remedy is an election petition.
• The validity of a statutory order must be judged by the reasons stated in it, and cannot be supplemented by fresh reasons in an affidavit filed in court.

On the strength of Article 324 the Commission enforces the Model Code of Conduct, which has no statutory basis. It also administers the Election Symbols (Reservation and Allotment) Order, 1968, under which it decides which faction of a split party is the real party; the Order was upheld in Sadiq Ali v. Election Commission of India, 1971 INSC 310.

4. T.N. Seshan (1995): a multi-member Commission

In 1993 the Government made the Commission multi-member and provided that decisions would be taken by majority. The Chief Election Commissioner challenged this. In T.N. Seshan, Chief Election Commissioner of India v. Union of India, 1995 INSC 398, (1995) 4 SCC 611, a Constitution Bench upheld the law. The Chief Election Commissioner is first among equals, not a superior; the protection of his tenure is to secure his independence from the executive, not to make him superior to his colleagues. Decisions by majority are valid.

5. Appointment: Anoop Baranwal (2023) and the 2023 Act

Parliament had never made the law contemplated by Article 324(2), so appointments were made by the President on the advice of the Prime Minister alone. In Anoop Baranwal v. Union of India, 2023 INSC 190, (2023) 6 SCC 161, a five-judge Bench held that, until Parliament makes a law, the Chief Election Commissioner and Election Commissioners shall be appointed on the advice of a committee of the Prime Minister, the Leader of the Opposition (or of the largest opposition party) and the Chief Justice of India. The Court stressed that an independent Commission is essential to free and fair elections.

Parliament then enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. Its key features:

• A Selection Committee of the Prime Minister, the Leader of the Opposition and a Union Cabinet Minister nominated by the Prime Minister. The Chief Justice is left out, so the Government has a two-to-one majority.
• A Search Committee headed by the Law Minister prepares a panel of five names, though the Selection Committee may consider others.
• Eligibility limited to persons who hold or have held a post equivalent to Secretary to the Government of India.
• A term of six years or until sixty-five, salary equal to that of a Supreme Court judge, and protection from suits for acts done in the discharge of duties.

The Act was challenged as defeating the purpose of Anoop Baranwal. The Court declined to stay it in March 2024, and appointments have since been made under it. Note the legal point: Anoop Baranwal was expressly an interim arrangement “until Parliament makes a law”, so the challenge has to rest on the independence of the Commission as part of the basic structure, not on the judgment alone.

6. The bar in Article 329

• 329(a). The validity of any law on delimitation of constituencies or allotment of seats cannot be questioned in any court.
• 329(b). No election to Parliament or a State legislature can be called in question except by an election petition presented to the authority and in the manner provided by law (under the 1951 Act, the High Court).

The leading case is N.P. Ponnuswami v. Returning Officer, Namakkal, 1952 INSC 2, AIR 1952 SC 64: the improper rejection of a nomination paper cannot be challenged by writ during the election, only by an election petition afterwards. The purpose is that elections should not be held up by litigation midway. Mohinder Singh Gill applied the same rule, while clarifying that the bar does not protect action taken outside the electoral process or wholly without authority.

7. Money and information: the electoral bonds judgment

Voters' right to know is part of Article 19(1)(a): in Union of India v. Association for Democratic Reforms, 2002 INSC 253, (2002) 5 SCC 294, the Court required candidates to disclose criminal antecedents, assets and educational qualifications. Building on it, in Association for Democratic Reforms v. Union of India, 2024 INSC 113, (2024) 5 SCC 1, a five-judge Bench unanimously struck down the Electoral Bond Scheme, 2018 and the related amendments that allowed anonymous donations and removed the cap on corporate donations. Anonymous funding violated the voter's right to information, and unlimited corporate funding was manifestly arbitrary under Article 14. The State Bank of India was directed to give the details of bonds to the Commission, which published them.

How this is examined

“Election Commission” appears in recent KSLU papers as an essay or short note: composition, powers and functions, and independence. Write Articles 324 to 329 first, then independence (removal, Seshan), then powers (Mohinder Singh Gill, Model Code, symbols), then appointment (Anoop Baranwal and the 2023 Act).

A short note on Article 329 or on election disputes is also possible; Ponnuswami is the case to name. Close any essay by linking it back to free and fair elections as part of the basic structure.