Faculty Coordinator: Mr. S. Mohammed Azaad, Assistant Professor of Law, TNNLU
Time: 4.00 P.M.
Course: 4th year, Election Laws Elective
Mode: Online
Number of Participants: 88
About The Event
The online webinar session started at 04:00 pm and ended around 06:30 pm. The session stated with a discussion on the evolution of election laws in India from 1909 to the present day. The discussion was divided into two halves: the first half was the period between 1950 and 1985 and the second half was between 1985 to the present day. Who delivered the talk? Was it a group discussion? Then who moderated it? How was it conducted?
Democracy in India dates back to the Chola period in Tamil Nadu. We looked into the example of a village called Uthiramerur, located near Chennai. The inscription of Uthiramerur gives some details about the eligibility to contest the elections in the Chola Period. Another significant trace to development of democracy in India is the Indian Councils Act, 1892. It was an Act of the British Parliament that introduced various amendments to the composition and function of legislative and executive councils in British India.
The Government of India Act 1935 introduced Bicameral Legislature in India which was a significant step in the Indian Democracy. The most historic event for Indian Democracy is the formation of the Constituent Assembly in 1946. The members of the Constituent Assembly of India were indirectly elected to frame the Constitution of India.
The Representation of People’s Act, 1950 laid down the rules for conduct of elections to the lower house of parliament. Though it does not cover all aspects of elections, it gives a brief idea of elections and electoral roles. First Election was conducted in 1951 which was a major step to Democracy
The Election Commission of India (ECI) was established in the year 1950 and it was initially a single member body. The primary purpose of ECI was to keep a check on the executive power and also regulate matters related to elections. The other important feature of the Election Commission was to reflect all the social differences prevalent in the society and to gather the opinion of all. The Election Commission was rather a check on the inequality in elections.
The Body comprised of members from both the Centre and the States and they who? are subjected to regulations by the Election Commission. Another important duty of the Election Commission is conferring of Adult Suffrage (Article 326) Granting every Adult citizen the right to vote. There are flaws in the system, but the positives override them.
The first case that was discussed by who? was the famous case of NP Ponnuswami v. Returning Officer. This case in general was regarding all issues relating to the first election conducted. It tried to define what an election is and how it is to be conducted. It also analysed provisions of The Representation of Peoples Act and formed a structure to how elections are to be conducted.
Another important question which was put forth was about the interpretation of Article 329(b) of the Constitution. The court pointed out an essential feature of legal functionality that clause (b) of Article 329 must be read as complementary to the other clauses of the Article. Clause (a) of the Article bars the jurisdiction of the court to try the election matters which has been stated in Article 327 and Article 328 of the Constitution. The Court speculated that if 329(a) prohibits the court's jurisdiction to try election matters then why the Constitution-makers would leave a small part of the whole process to be tried by High Court and therefore the court quoting the more reasonable view declared that the word election covers "all the electoral processes and matters" and the appellants claim has no value. The case also held that Article 226 of the Indian Constitution does not include litigation against election matter/election law.
In the case of Rajbala v. State of Haryana, the Supreme Court inferred that the right to vote and right to contest are both constitutional rights and not statutory rights. After deciding that the right to contest is a constitutional right, the level of exploration that had to be engaged by the Court would have to be amply advanced, as the State cannot be permitted to take away rights guaranteed by the Constitution without a compelling interest.
In the case of Mohinder Singh Gill v. Chief Election Commissioner, the Supreme Court examined at length the provisions of Article 324 of the Constitution and held that the Election Commission may be required to cope with some situation in the conduct of elections which may not be provided for in the enacted laws and the rules and that Article 324 of the Constitution was a reservoir of power for the Election Commission to act in such vacuous area, in its own right, as a creature of the Constitution. The Supreme Court also held that Article 329 (b) was a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers to complete an election. Election, in this context, has a very wide connotation commencing from the notification calling the election and culminating in the final declaration of the returned candidate.
In the case of AC Jose v. Sivan Pillai, the petitioner, Jose challenged the election on the ground that the 1951 Act did not empower Election Commission to use EVMs for conducting polls and counting votes. The Supreme Court voted in favour and ordered a re-poll in 50 stations.
The landscape of election law changes post 1985, with the advent of Public Interest Litigation the people were more aware of their rights than ever before, furthermore this was the post emergency period where the people and the government machinery were aware on how important it was to have an independent Election Commission. The resource person then went on to discuss the powers of the Election Commission and the evolution of these powers. Post Emergency the Election Commission of India had become more assertive about their powers.
The Model Code of Conduct (MCC) was passed which was agreed upon by the parties and the Election Commission. The Election Commission has the ability to enforce the model code of conduct with respect to both the party that is in power and the conduct of candidates from all other parties. MCC lays down rules with respect to the behaviour of the candidates during election time. The enforcement of this Model Code of Conduct is still difficult. One way through which the election commission can enforce the Model Code of Conduct is through the Symbols Order and the symbol of the party with repeated offences can be revoked.
The Election Commission furthermore also has the power to ban candidates from campaigning and issue gag orders against candidates. The Election Commission of India also has extraordinary powers and can halt the ordinary functioning of the ruling party during election time and place a restraint on the party from announcing any new policies or schemes. The Election Commission also has the authority take disciplinary action against their officials.
The Resource person then discussed the way the Election Commission which was once a single member body transformed itself into a multi-member body. In the case of TN Seshan, Chief Election Commissioner v. Union of India 1995, the Supreme Court held that the Chief Election Commissioner was only the first among equal and decisions must be taken according to a majority vote. Though first opposed by the former Chief Election Commissioner, TN Seshan himself admitted that a three-member Election Commission only adds to strength of the Election Commission.
The Courts do not have the power to direct the ECI to formulate law, however they may do so in the event that no such law or regulation exists. Other such instances of intervention of the court are in the case of trials against MLAs and MPs. In the case of Lily Thomas v. Union of India, the Supreme Court held that Section 8(4) of the Representation of People Act invalid, Section 8(4) which protects the convicted politicians against any sort of disqualification from contesting the elections, on the ground of pending appeals against their conviction in the appellate courts.
Another such intervention was seen in the case of S. Subramaniam Balaji v. State of Tamil Nadu, where the Supreme Court held that although, the promises in the election manifesto cannot be construed as ‘corrupt practice’ under Section 123 of the Representation of People Act, the reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people. It shakes the root of free and fair elections to a large degree.
The Resource person then discussed the Electronic Voter Machines (EVMs), and whether or not the Election Commission had the powers to change the method of elections. The Resource person then went on to discuss the various problems that plague the growth of election law in India today, and one of them is the fact that most elections petitions are only filed during election time and the petitioner loses interest soon after the elections happen and the matter does not reach higher courts of law where the nuances of election law can be discussed in detail.
The resource person’s method of delivery was primarily lecture and discussion method. The session was an interactive one and the participants were given around 20 minutes at the end of the lecture to ask questions. The resource person concluded the session by giving a summary on his lecture in three parts: The first was about the vision of election law is to ensure free and fair elections, the second was the summary of the various developments in election law from 1909 to the present day in India with specific reference to the role of ECI as an independent constitutional regulator and finally he concluded with the contemporary and future issues relating to election regulation, i.e., how elections will be conducted in the future by giving examples of online campaigns, block chain technology and the lack regulations surrounding it. For participants, it was extremely crucial to know the origin of election laws and how much it has evolved since its inception. The futuristic issues on elections gave us a picture of how further the election laws are to be developed. Kindly ask them to summarise the discussion for the purpose of this report. This is too detailed and too long.
