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Recently the local body elections in the state of Tamil Nadu saw a great deal of defiance towards the State Election Commission of Tamil Nadu whereby DMK accused the election commission of favoring the opposite party namely AIADMK in the declaration of results.
This gives rise to a plethora of questions – What are state election commissions and how are they supposed to function? Are they supposed to be neutral, and why so? Is there any authority to keep a check on their functions? This explainer covers all aspects of State Election Commissions in India.
What are State Election Commissions (SECs)?
The State Election Commissions are vested with the powers to conduct elections to the Corporations, Municipalities, Zilla Parishads, District Panchayats, Panchayat Samitis, Gram Panchayats and other local bodies. The State Election Commissions were constituted under the Constitution’s 73rd and 74th Amendment Acts of 1992 for each State/Union Territory and are independent of the Election Commission of India.
State Election Commissions carry out activities related to the preparation of wards/ election divisions as per the local bodies’ rules, decision of boundaries and distribution of seats along with the preparation of voters list for the local bodies’ organizations as mentioned in the above paragraph.
Legal provisions under which they are created
The State Election Commissions are constituted under Articles 243K and 243 ZA of the Constitution of India. The said Articles provide that the conduct of elections, and the superintendence, control, and direction of the preparation of electoral rolls, to panchayats and Municipalities shall vest in the State Election Commission consisting of the State Election Commissioner.
The State Election Commissioner has the status, salary, and allowance of a Judge of a High Court and can only be impeached on the grounds, and in the manner as a Judge of a High Court is impeached.
The parts IX and IXA of the Constitution of India enable the Panchayats and Municipalities to function as an institution of Self-Government endowed with the powers and authority for preparing and implementing plans and schemes in respect of the matters entrusted to them.
The State Election Commissions have been entrusted with the responsibility for holding elections in a fair manner, so as to inspire the confidence of the general public, in turn, emphasizing the indispensable provision of ‘free and fair elections’ to the local bodies by the Constitution of India.
The Local Self-Government is mentioned in List II of the Seventh Schedule of the Constitution and therefore the State Election Commission can only be established by the State Government. Every state has a different law for their State Election Commission governing the functioning of the SECs.
Function with respect to the Election Commission of India
The State Election Commission is an independent constitutional body vested with the powers and authority to conduct, supervise and direct the local body elections in the states/ Union Territories.
The first and foremost function of the State Election Commission is to prepare the electoral rolls of Panchayats, Municipalities and Municipal Corporations in order to conduct their elections. The Election Commissioner is also the chairman of the Delimitation Commission which is concerned with the redrawing of boundaries of various assembly and Lok Sabha constituencies based on a recent census.
In addition to the above functions, the State Election Commission also performs the following functions:
- Conduct of elections to the offices of: Mayor/ Chairman/ President/ Deputy Mayor/ Vice Chairman/ Vice President and the no-confidence motion against them.
- Conduct of the Elections to various Standing Committees and their Chairpersons.
- Determination of disqualification of elected members/Councilors.
- Determination of disqualification of elected members on the grounds of defection.
The Election Commission of India has no role in the conduct of the local body elections. However, the Election Commission may provide help to the State Election Commissions by lending them the EVM machines or sharing the electoral rolls.
Reasons why SEC should be politically neutral
‘Free and Fair elections’ is one of the basic and indispensable provisions of the Indian Constitution. The biased approach of the election commission itself would not only infringe the constitutional right to vote but also would be against the principles of Right to Equality guaranteed under the Indian Constitution.
India is a democracy. The concept of democracy is paramount in the Indian Constitution which has been given by ‘We, the People of India’ unto ourselves. The Supreme Court has also held democracy to be one of the inalienable basic features of the Constitution and forming a part of its basic structure.
The democratic system of governance envisages the representation of people in the Parliament and the State Legislatures by the method of election. Hence, the importance of free and fair elections can be sufficiently made out.
The Election Commissions are entrusted with the responsibility of maintaining the essence of democracy through the conduct of free and fair elections. A biased approach towards any political party would be a grave violation of the Constitution of India and also a deep injustice to the people of India who display their faith in the system.
India is a federal country and the Constitution gives the States and the Union Territories significant control over their respective government. The State Election Commissions are established by the State Governments. These are governed by the different laws prevailing in different states. The Election Commission of India, on the other hand, is established by the Central Government. Therefore both the commissions have different domains and are independent.
The State Election Commissions have the same powers and enjoy the same status as the Election Commission of India, as clarified by the Supreme Court in the case of Kishan Singh Tomar v. Municipal Corporation of Ahmedabad(AIR 2007 SC 269).
The Election Commission itself wrote a letter to all states in 1996 wherein it clarified that its Chief Electoral Officer (who represents Election Commission of India in each State) should not be entrusted with any work related to the preparation of electoral rolls for the local body elections. Hence the independence of the State Election Commission can be sufficiently inferred through the above-stated arguments.
Who checks the corruption of Election Commissions?
The Election Commissions are independent constitutional bodies. There is no individual authority incorporated to check the corruption of the ECs. Also, under Article 329 of the Constitution, the courts cannot interfere in the electoral matters except through the way of an election petition.
An Election Petition can be filed by any candidate for rendering the elections void and also for a further declaration that he himself or any other candidate has been duly elected, as per the Representation of the People Act, 1951. The High Court has the original jurisdiction to take up such matters. However, an appeal can also be filed to the Supreme Court within thirty days of the order made by the High Court.
Section 129 of the Representation of the People Act also provides that any distinct election officer or any member of the police force would not endeavor to persuade or dissuade any person to give his vote at an election or influence them in any other manner. The person guilty of any such offense shall be punishable with imprisonment of up to six months or fine or both.
Moreover, the provision of impeachment of the Election Commissioner is also a mechanism designed to protect against him or her severely violating the provisions of ‘free and fair elections’ and the other relevant rules.
All in all, the State Election Commissions are individual bodies responsible for the conduct of local body elections in all the States/Union Territories of India. These operate without any interference from any court of law. However, the powers are not absolute and can be challenged through an election petition. The recent dispute of the Tamil Nadu local bodies’ elections is the testament to the same.
In the aforementioned dispute, the Tamil Nadu State Election Commission was accused of being politically biased towards the DMK party for which the said party also filed an election petition before the Honorable Supreme Court of India.
Hence, it can be safely inferred that the State Election Commissions are an integral part of the democratic republic of India, with many important powers and at the same time, provisions for keeping in check those powers.
Author: Prachi Gupta from UILS, Panjab University, Chandigarh.
Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.