Article 324 and ECI

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Article 324 and ECI

Why in news?

  • The Election Commission has invoked its powers under Art 324 to curtail campaigning in West Bengal following violence in Kolkata.
    • The Election Commission of India passed an unprecedented order, ending the campaign in West Bengal at 10 pm on May 16 instead of 5 pm on May 17 as was notified earlier, and is the norm.
    • It also removed the state’s Home Secretary, and a senior police officer.
  • The EC’s decision came in the light of violent clashes between the BJP and the Trinamool Congress during Amit Shah’s roadshow, which resulted in large-scale vandalism.
  • A bust of 19th-century social reformer Ishwar Chandra Vidyasagar installed at the Vidyasagar College in Kolkata was also smashed by miscreants, fuelling an ugly spat between the two rival parties.

EC’s order

  • According to a press release issued by the ECI, this was “probably” the first time it has invoked Article 324 to cut short campaigning ahead of parliamentary polls in certain constituencies. Through its order, the agency ruled that no person will be allowed to

(a) convene, hold, attend, join or address any public meeting or procession in connection with an election,

(b) display to the public any election matter by means of cinematograph, television or similar apparatus, or

(c) propagate any election matter to the public by holding, or by arranging the holding of, any musical concert… or any other entertainment with a view to attract members of the public.

  • It also prohibited the sale or distribution of liquor at any hotel or catering establishment in the nine parliamentary constituencies under question and ordered the removal of –
    • the West Bengal Principal Secretary (Home) Atri Bhattacharya and
    • Additional Director General (Criminal Investigation Department) Rajiv Kumar — who are believed to be close aides of the West Bengal Chief Minister.

What is Article 324?

  • Article 324 of the Constitution: Article 324 charts out the various powers and responsibilities of the Election Commission of India (ECI) for ensuring free-and-fair polling across the country.
    • “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),” the first section of the provision reads.
    • Article 324 vests the “superintendence, direction and control of elections” in an Election Commission consisting “of the Chief Election Commissioner and a number of other such Election Commissioners, if any, as the President may from time to time fix”.
    • That is, the Chief Election Commissioners or CEOs, as appointed by the President, have the power to superintend, direct and control the election proceedings directly, in their own right.
  • Representation of the People Act: Parliament enacted The Representation of the People Act, 1950 and The Representation of the People Act, 1951 to define and enlarge the powers of the Commission.
  • Mohinder Singh Gill case: In fact, in its judgment in the case of ‘Mohinder Singh Gill & Anr vs The Chief Election Commissioner and Others (December 2, 1977)’, the Supreme Court ruled that “Article 324, on the face of it, vests vast functions in the ECI, which may be powers or duties, essentially administrative, and marginally, even judicative or legislative”.
    • This means the ECI mainly has administrative functions in the preparation of electoral rolls and conduct of elections.
    • And, it can act under its own independent or special jurisdiction to ensure law and order is maintained during election and no corrupt powers are able to hijack the process with their direct or indirect involvement.
    • ECI has the right to debar candidates, cancel their nomination or take reprimanding action if they are found violating the rules and regulations or indulging in violence and corrupt means.
  • In N P Ponnuswami (1952) case, the Supreme Court held that even courts do not have the power to interfere with the electoral process, a view that it reiterated in Special Reference No. 1 (2002).
  • The commission exercises its powers and performs its functions under Article 324 in conformity with the provisions of Sections 9 to 11 of ECI — The conditions of Service of Election Commissioners and Transaction of Business Act, 1991.
    • The three Sections apply to all the items of businesses transacted by the commission — whether administrative, judicative or legislative.
      • This means, all actions and individual decisions taken by the commission are in sync with its own rulebook for serving officers and apply to all domains of the commission’s functioning, ie., administrative work, judicial prudence, and duties prescribed in accordance with the legislature.
    • The Clause 5 of the law states that:
      • “Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine;
      • Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
      • Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.”
    • Tenure: That is, until the President of India removes the Chief Election Commissioner from his post in special circumstances, his or her tenure will continue as decided by the president, and the same applies to regional officers working under the CEO.
    • Decriminalizing Indian politics: These terms are of wide amplitude and empower the commission to take recourse to also address the issue of decriminalizing Indian politics.
      • This becomes consequential as, in the absence of Casus Omission (case of Omission in Law), it can interpret and provide the necessary details to fill the lacuna or non-liquet (ie when the law is not clear), wherein the jurisprudence can be evolved and empower the Election Commission.
    • Therefore, Article 324 basically lays down the powers of the Election Commission of India, which as a constitutional body, is entitled to take its decision based on its conscience and wisdom, being conferred with the responsibility of being the conscience keeper of the nation for the purpose of ensuring a democratic rule in the country.

ECI’s role in West Bengal

  • The Representation of the People (Amendment) Act, 1988 introduced Section 28A in the RP Act of 1951, which said that –
    • all officers deployed for the conduct of an election “shall be deemed to be on deputation to the Election Commission” from the notification of the election to the declaration of the results, and
    • “such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission”.
  • The situation in West Bengal — of some violence and vandalism, which was neither new nor alarming and critical — is covered by existing laws, and there was no need to invoke the residuary power granted to the ECI by Article 324.
    • The ECI took action against officers for failing in their duties — nothing more was required, except the ordering of a probe.
    • It does seem that the ECI did not take adequate precautions in West Bengal in spite of violence in the first six phases.

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