Analysis of powers of ECI – UPSC GS2

Model Code of Conduct:
  • Model code of conduct (MCC) is a set of guidelines that ECI issues before elections.
  • The political parties, candidates, and governments need to follow MCC during an election.
  • T.N Seshan (former chief election commissioner) enforced the model code of conduct (MCC) for the first time using the powers under Article 324.
  • It brought the issue of ballot rigging and the use of Muscle power during elections under control.
  • Apart from MCC, the ECI also gives directions, instructions, and clarifications on other issues that emerge during the election.
  • However, some issues linked to the model code, and the exercise of the ECI under Article 324, requires clarity.
What is Article 324?
  • Article 324 empowers the Election Commission to direct, control, and conduct elections to Parliament and Legislature of every state. It also conducts elections to the offices of the President and Vice President
  • In Mohinder Singh Gill case, the SC stated that Article 324 gives plenary powers to ECI to ensure free and fair elections.
  • Is MCC enforceable legally?
    • The Model Code was framed on the basis of a consensus among political parties. It has no legal backing.
    • Commission has the power to suspend or withdraw recognition of a political party if it refuses to follow the MCC according to the Election Symbols (Reservation and Allotment) Order, 1968.
    • Since the MCC is legally not enforceable, how can the ECI take punitive action such as withdrawal of recognition against a political party.
  • Can ECI intervene in administrative decisions?
    • ECI’s intervention in the administrative decisions of a Union or State government during elections is questionable. For example, ECI recently stopped the Kerala Government from continuing to supply kits containing rice, pulses, cooking oil, etc.
    • The SC in Subramaniam Balaji case held that distribution of colour TVs, computers, cycles, goats, cows, etc., that is in accordance with the directive principles of state policy is permissible during an election.
    • Also, according to Section 123 (2)(b) of the Representation of the People Act, 1951, the declaration of a public policy will not amount to interfering with the free exercise of the electoral right.
  • Can ECI transfer officials?
    • Under Article 324, ECI has the power to abruptly transfer any senior officials working under State governments. If it believes that the presence of those officials will adversely affect the free and fair election.
    • However, in Mohinder Singh Gill’s case, the Court had made it clear that the ECI can draw power from Article 324 only when no law exists which governs a particular matter.
    • Transfer of an official is within the exclusive jurisdiction of the government. It needs the concurrence of the State governments.
    • Further, Article 324 does not confer absolute powers on the ECI to do anything in connection with the elections.
No constitutional body has absolute power.  As per S.M. Fazalali, if ECI is armed with unlimited and arbitrary powers and if it becomes partisan, it might lead to a constitutional crisis. Integrity and independence of the electoral process are important and indispensable to the democratic system.

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