Election Commission

Art.324 vests the superintendence, direction and control of elections in the Election Commission. Mohinder Singh Gill treated it as a reservoir of power operating where the law is silent, and Art.329(b) confines challenges to an election petition after the result.

Article 324(1) vests 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, in a Commission referred to as the Election Commission.

What Art.324 does not cover. Elections to Panchayats and Municipalities are outside it. Those are entrusted to the State Election Commissions under Arts.243K and 243ZA, which are separate bodies appointed by the Governor.

Legal Framework

Provision	Subject	Key Rule
Art.324(1)	Vesting of power	Superintendence, direction and control of electoral rolls and of the conduct of elections to Parliament, State Legislatures, and the offices of President and Vice-President
Art.324(2)	Composition	The Chief Election Commissioner and such number of other Election Commissioners as the President may from time to time fix, appointed by the President subject to any law made by Parliament
Art.324(3)	Chairman	Where other Election Commissioners are appointed, the Chief Election Commissioner acts as Chairman
Art.324(4)	Regional Commissioners	May be appointed before a general election, in consultation with the Election Commission
Art.324(5)	Tenure and removal	The Chief Election Commissioner may not be removed except in the like manner and on the like grounds as a Judge of the Supreme Court; his conditions of service may not be varied to his disadvantage after appointment; other Election Commissioners and Regional Commissioners may not be removed except on the recommendation of the Chief Election Commissioner
Art.324(6)	Staff	The President and the Governors must make available such staff as the Commission requests
Art.325	One general electoral roll	No person may be excluded from, or claim inclusion in a special roll, on grounds of religion, race, caste or sex
Art.326	Adult suffrage	Elections to the House of the People and to State Legislative Assemblies on the basis of adult suffrage, the qualifying age being eighteen years since the 61st Amendment, 1988
Art.327	Parliament's power	To make provision with respect to all matters relating to elections, subject to the Constitution
Art.328	State Legislature's power	To make provision as to elections to the State Legislature, so far as Parliament has not done so
Art.329(a)	Bar on courts	The validity of any law relating to the delimitation of constituencies or the allotment of seats may not be called in question in any court
Art.329(b)	Election petitions	No election to Parliament or a State Legislature may be called in question except by an election petition presented to such authority and in such manner as the appropriate Legislature provides

**Parliament has legislated, and the Chief Justice is no longer on the selection committee.**

The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 is the law contemplated by Art.324(2), and it supersedes the interim direction in Anoop Baranwal v Union of India 2023.

Under the Act the President appoints on the recommendation of a Selection Committee consisting of the Prime Minister as Chairperson, a Union Cabinet Minister nominated by the Prime Minister, and the Leader of the Opposition in the House of the People, or where there is none, the leader of the largest opposition party. A Search Committee headed by the Cabinet Secretary prepares a panel of names.

The critical change is that the Court had directed the third member to be the Chief Justice of India, and the Act substituted a Union Cabinet Minister in his place. The executive therefore holds two of the three seats on the committee. That is precisely the feature which the Court held unsustainable in Anoop Baranwal, and which caused the National Judicial Appointments Commission to be struck down in SC Advocates on Record Association v Union of India 2015, so the Act's validity is contested. Term of office remains six years or until the age of sixty five, whichever is earlier.

The Nature of the Power under Art.324

**Mohinder Singh Gill v Chief Election Commissioner (1978)** Supreme Court of India

Facts: Counting in a parliamentary constituency was disrupted by violence and ballot papers were destroyed at some polling stations. Before the result was declared, the Election Commission cancelled the poll and ordered a fresh election for the whole constituency. No statutory provision expressly authorised cancellation of a poll in such circumstances, and the order was challenged as being without authority of law and as having been made without hearing the affected candidates.

Issue: Whether Art.324 confers substantive power on the Commission where the statutes are silent, and whether that power is subject to the rules of natural justice.

Held: The order was upheld. Article 324 is a reservoir of power: it operates in areas left unoccupied by legislation, so that where the enacted law is silent the Commission has plenary authority to take such measures as are necessary to ensure a free and fair election. But the power is not arbitrary. It must be exercised consistently with, and not in defiance of, the existing law, it must be exercised in conformity with the rules of natural justice so far as the exigencies of an election permit, and it is subject to judicial review. The Court added the observation, since much quoted, that a public order must be judged by the reasons it discloses on its face and cannot be supported by fresh reasons supplied later in an affidavit.

Relevance: The central case on Art.324. Every answer must state the reservoir metaphor together with the three limits: consistency with existing law, natural justice, and reviewability.

**N P Ponnuswami v Returning Officer, Namakkal Constituency (1952)** Supreme Court of India

Facts: The Returning Officer rejected the appellant's nomination paper. He moved the High Court under Art.226, contending that the rejection was improper and that he should be permitted to contest, since waiting for the result and then filing an election petition would be futile.

Issue: Whether the rejection of a nomination paper may be challenged by writ petition, or whether Art.329(b) confines the remedy to an election petition.

Held: The writ petition was barred. The word "election" in Art.329(b) is used in the wide sense of the entire process, from the notification calling the election through to the declaration of the result, and not merely the final act of choosing. Rejection of a nomination is therefore a step in the election, and the words "no election shall be called in question except by an election petition" exclude the writ jurisdiction at every intermediate stage. The remedy is to raise the objection in an election petition after the result, where it may be a ground for setting the election aside.

Relevance: The leading case on Art.329(b). The reason of policy to state is that elections must not be halted midway by litigation; grievances are collected up and dealt with once, afterwards.

Composition and Independence

**T N Seshan v Union of India (1995)** Supreme Court of India

Facts: The Commission, which had functioned as a single member body for most of its history, was made multi-member by the appointment of two further Election Commissioners, and provision was made for the transaction of business by majority. The Chief Election Commissioner challenged the arrangement, contending that it reduced him to one vote among three and undermined the office.

Issue: Whether a multi-member Commission is consistent with Art.324, and what the relationship is between the Chief Election Commissioner and the other Election Commissioners.

Held: The arrangement was upheld. Article 324(2) expressly contemplates other Election Commissioners, and a multi-member body is a safeguard against the concentration of enormous power in one person. The Chief Election Commissioner is not superior in authority to the other Commissioners, and they are not subordinate to him; his position under Art.324(3) is that of Chairman, with the functions that role ordinarily carries, and business is transacted by unanimity or, failing that, by majority. The requirement in Art.324(5) that other Commissioners be removed only on the Chief Election Commissioner's recommendation is a protection for their independence against the executive, and is not a mark of their subordination to him.

Relevance: The authority on the internal structure of the Commission. The point examiners look for is the correct reading of Art.324(5), which is protective rather than hierarchical.

**Anoop Baranwal v Union of India (2023)** Supreme Court of India

Facts: Appointments to the Election Commission had always been made by the President on the advice of the Union Council of Ministers, in effect on the choice of the executive alone, Parliament never having enacted the law contemplated by Art.324(2). This was challenged as impairing the independence of the Commission.

Issue: Whether appointment by the executive alone is consistent with the independence of the Election Commission, and what the Court may do in the absence of legislation.

Held: A Constitution Bench held that the independence of the Election Commission is essential to free and fair elections, which are part of the basic structure, and that exclusive executive control over appointments is inconsistent with it. Article 324(2) makes appointment "subject to the provisions of any law made by Parliament", and the seventy year legislative vacuum could not be allowed to leave the matter with the executive indefinitely. The Court directed that, until Parliament legislates, the Chief Election Commissioner and other Election Commissioners be appointed by the President on the advice of a committee consisting of the Prime Minister, the Leader of the Opposition in the House of the People, and the Chief Justice of India. It also recommended, without directing, that the other Election Commissioners be given the same protection of tenure as the Chief Election Commissioner.

Relevance: The most important recent decision on the Commission. Note that the direction was expressly interim, operative only until Parliament acted, and that Parliament acted within the year: the Act of 2023 substituted a Union Cabinet Minister for the Chief Justice of India on the selection committee, so the executive now holds two of the three seats. The reasoning of this case is accordingly the principal ground on which that Act is challenged.

Why independence is treated as a constitutional necessity. The Commission conducts the elections through which every other organ derives its authority. If the executive of the day controlled the body that conducts the election at which that executive seeks renewal, the whole chain of legitimacy would be compromised. This is the reasoning that links Art.324 to Indira Nehru Gandhi v Raj Narain (1975), where free and fair elections were recognised as part of the basic structure.

Expansion of the Commission's Role

**Union of India v Association for Democratic Reforms (2002)** Supreme Court of India

Facts: Petitioners sought directions requiring candidates to disclose their criminal antecedents, assets and educational qualifications. No statute required such disclosure.

Issue: Whether the voter has a right to information about a candidate, and whether the Commission may require disclosure in the absence of legislation.

Held: The right to know the antecedents of a candidate is part of the freedom of speech and expression under Art.19(1)(a), since a voter cannot make a meaningful choice in ignorance. Applying Mohinder Singh Gill, Art.324 is a reservoir of power operating where the law is silent, so the Commission was competent to be directed to require candidates to file affidavits disclosing criminal cases, assets and liabilities, and educational qualifications.

Relevance: The best illustration of the reservoir doctrine actually being used to create an obligation. Read with People's Union for Civil Liberties v Union of India (2013), which held that a voter has a right to cast a negative vote and directed the provision of a "none of the above" option.

Illustrations

Poll cancelled where the law is silent: Ballot papers are destroyed in violence and the Commission orders a fresh poll, no statute providing for it. Applying Mohinder Singh Gill (1978), Art.324 supplies the power because the enacted law is silent.
Order defended by later reasons: The Commission's order gives no reasons, and reasons are supplied in an affidavit in court. Applying the same case, the order must stand or fall on the reasons it discloses on its face.
Rejection of a nomination: A candidate whose nomination is rejected files a writ petition. Applying N P Ponnuswami (1952), Art.329(b) bars it, since rejection of a nomination is a step in the election, and the remedy is an election petition after the result.
Delimitation challenged: A voter challenges the law delimiting constituencies. Article 329(a) bars the challenge in any court.
Multi-member decision: The two Election Commissioners outvote the Chief Election Commissioner. Applying T N Seshan (1995), the decision stands, business being transacted by majority where unanimity fails.
Removal of an Election Commissioner: The Union proposes to remove an Election Commissioner without any recommendation from the Chief Election Commissioner. Article 324(5) forbids it, the requirement being a protection of the Commissioner's independence.
Removal of the Chief Election Commissioner: The Union proposes to remove the Chief Election Commissioner by executive order. This is void; he may be removed only in the like manner and on the like grounds as a Judge of the Supreme Court, that is by an address of both Houses on the ground of proved misbehaviour or incapacity.
Separate electoral roll: A State provides for a separate electoral roll for a religious community. This offends Art.325, which requires one general electoral roll and forbids exclusion or special inclusion on grounds of religion, race, caste or sex.
Voting age: A law fixes the voting age at twenty one. This conflicts with Art.326 as amended by the 61st Amendment, 1988, which fixes it at eighteen.
Disclosure of antecedents: Candidates are required to file affidavits disclosing pending criminal cases. Applying Association for Democratic Reforms (2002), this is supported both by the voter's right to know under Art.19(1)(a) and by Art.324.
Local body election: A dispute arises over a Municipal election. The Election Commission of India has no role, such elections falling to the State Election Commission under Art.243ZA.

Recall Check

What exactly is vested in the Election Commission by Art.324(1), and what is excluded from it?
State the removal protections in Art.324(5) for the Chief Election Commissioner and for other Election Commissioners, and explain the difference.
What does "election" mean in Art.329(b), and what follows from that meaning?

Key Cases

N P Ponnuswami v Returning Officer, Namakkal Constituency (1952) NP Ponnuswami v Returning Officer Namakkal 1952
Issue: Whether the rejection of a nomination paper can be challenged by writ petition.
Rule: "Election" in Art.329(b) means the whole process from notification to declaration of result, so no intermediate stage may be questioned except by election petition.
Held: The writ petition was barred, the remedy lying in an election petition after the result.

Mohinder Singh Gill v Chief Election Commissioner (1978) Mohinder Singh Gill v Chief Election Commissioner 1978
Issue: Whether Art.324 confers substantive power where the statutes are silent.
Rule: Art.324 is a reservoir of power for ensuring free and fair elections, exercisable consistently with existing law, in conformity with natural justice, and subject to judicial review.
Held: The cancellation of the poll and the order for a fresh election were upheld.

T N Seshan v Union of India (1995) TN Seshan v Union of India 1995
Issue: The validity of a multi-member Commission and the relationship between its members.
Rule: Art.324(2) contemplates other Commissioners; the Chief Election Commissioner is Chairman and not a superior, and Art.324(5) protects the other Commissioners rather than subordinating them.
Held: The multi-member arrangement and majority decision making were upheld.

Anoop Baranwal v Union of India (2023) Anoop Baranwal v Union of India 2023
Issue: Whether appointment of Election Commissioners by the executive alone is constitutional.
Rule: The independence of the Commission is essential to free and fair elections, which form part of the basic structure, so exclusive executive control over appointments cannot stand.
Held: Until Parliament legislates, appointments to be made on the advice of a committee of the Prime Minister, the Leader of the Opposition and the Chief Justice of India. Parliament has since legislated and replaced the Chief Justice with a Union Cabinet Minister.

Union of India v Association for Democratic Reforms (2002) Union of India v Association for Democratic Reforms 2002
Issue: Whether a voter has a right to know a candidate's antecedents.
Rule: The right to know is part of Art.19(1)(a), and Art.324 empowers the Commission to act where the law is silent.
Held: Candidates were required to file affidavits disclosing criminal cases, assets and educational qualifications.

Distinctions

Basis	Election Commission of India	State Election Commission
Provision	Art.324	Arts.243K and 243ZA
Appointed by	The President	The Governor
Elections conducted	Parliament, State Legislatures, President and Vice-President	Panchayats and Municipalities
Composition	Chief Election Commissioner and other Election Commissioners	A State Election Commissioner
Status	Constitutional body	Constitutional body of like status for local elections (Kishansing Tomar, 2006)

Basis	Art.329(a)	Art.329(b)
Subject	Validity of laws on delimitation and allotment of seats	Calling an election in question
Effect	Absolute bar on any court	Challenge only by election petition
Timing	At all times	At any stage of the election process, the remedy arising only after the result
Authority	Text of the article	N P Ponnuswami (1952)

Basis	Chief Election Commissioner	Other Election Commissioners
Removal	Only in the like manner and on the like grounds as a Judge of the Supreme Court	Only on the recommendation of the Chief Election Commissioner
Conditions of service	Not to be varied to his disadvantage after appointment	Governed by the law made by Parliament
Position in the body	Chairman under Art.324(3)	Members of equal authority (T N Seshan, 1995)
Decision making	One vote, as Chairman	One vote each, business by majority failing unanimity

Flashcards

What is vested in the Election Commission by Art.324(1)?

The superintendence, direction and control of electoral rolls and of the conduct of elections to Parliament, State Legislatures, and the offices of President and Vice-President.

Which elections are outside Art.324?

Elections to Panchayats and Municipalities, which fall to the State Election Commissions under Arts.243K and 243ZA.

How may the Chief Election Commissioner be removed?

Only in the like manner and on the like grounds as a Judge of the Supreme Court.

How may another Election Commissioner be removed?

Only on the recommendation of the Chief Election Commissioner.

Is that requirement a mark of subordination?

No. T N Seshan (1995) held it is a protection of the Commissioner's independence against the executive.

What is the position of the Chief Election Commissioner in a multi-member Commission?

Chairman under Art.324(3), with no superior authority; business is transacted by unanimity or by majority.

What does Art.325 require?

One general electoral roll for every constituency, with no exclusion or special inclusion on grounds of religion, race, caste or sex.

What is the voting age, and which amendment fixed it?

Eighteen years, fixed by the 61st Amendment, 1988, which reduced it from twenty one.

What is meant by calling Art.324 a reservoir of power?

That where the enacted law is silent, the Commission has plenary power to act to ensure a free and fair election (Mohinder Singh Gill, 1978).

What are the three limits on that power?

It must be consistent with existing law, must conform to natural justice so far as the exigencies of an election permit, and is subject to judicial review.

Can an order of the Commission be supported by reasons supplied later in an affidavit?

No. It must stand or fall on the reasons it discloses on its face.

What does "election" mean in Art.329(b)?

The entire process from the notification calling the election to the declaration of the result.

Can the rejection of a nomination be challenged by writ petition?

No. N P Ponnuswami (1952) held Art.329(b) bars it; the remedy is an election petition after the result.

On what basis was exclusive executive appointment of Election Commissioners held unconstitutional?

That the independence of the Commission is essential to free and fair elections, which are part of the basic structure (Anoop Baranwal, 2023).

What is the source of a voter's right to know a candidate's antecedents?

Art.19(1)(a), as held in Union of India v Association for Democratic Reforms (2002).

Exam Scenario

Problem: Two days before polling in a parliamentary constituency, the Election Commission cancels the poll at forty booths and orders a repoll, citing large scale impersonation. No statute expressly authorises a partial repoll on that ground, and the affected candidates were not heard. Ramesh, whose nomination had earlier been rejected by the Returning Officer, files a writ petition challenging both the rejection and the repoll order. The Commission's order records no reasons, and the reasons are set out for the first time in the counter affidavit. Separately, the two Election Commissioners overrule the Chief Election Commissioner on the repoll, and the Union thereafter proposes to remove one of them by executive order for having done so. Advise.

Step 1: Uphold the repoll as within the Art.324 reservoir

Apply Mohinder Singh Gill v Chief Election Commissioner (1978). Art.324 is a reservoir of power, so the absence of an express statutory provision is not fatal.

Where the enacted law is silent, the Commission has plenary authority to take measures necessary for a free and fair election, and cancelling a poll vitiated by impersonation falls squarely within that. The order is within power.

Step 2: Run the three limits from the same case

Consistency with existing law. The power must be exercised consistently with the enacted law, which raises no difficulty here.
Natural justice, so far as the exigencies of an election permit. The failure to hear the affected candidates is a real defect, though the urgency of an election in progress substantially reduces its weight.
Reasons on the face of the order. The order must stand on the reasons it discloses on its face. The Court held expressly that a public order cannot be supported by fresh reasons supplied later in an affidavit.

An order recording no reasons, with the reasons appearing for the first time in the counter affidavit, is therefore vulnerable on the third limit.

Step 3: Bar both of Ramesh's challenges under Art.329(b)

Apply N P Ponnuswami v Returning Officer, Namakkal Constituency (1952). "Election" in Art.329(b) bears the wide meaning of the whole process from notification to declaration of result.

Challenge	Character	Result at this stage
Rejection of nomination	A step in the election	Barred. Only an election petition lies, and the point may then be a ground for setting the election aside
Repoll order	An intermediate step in the election process	Barred on the Ponnuswami reasoning, notwithstanding that the order may be defective

The policy is that an election is not halted midway by litigation, and all grievances are gathered up and tried once, afterwards.

Step 4: Uphold the majority decision under Art.324(3)

Apply T N Seshan v Union of India (1995). The Chief Election Commissioner is Chairman under Art.324(3) and not a superior authority. The other Commissioners are not subordinate to him, and business is transacted by unanimity or, failing that, by majority.

Being outvoted is therefore a lawful outcome and the decision stands.

Step 5: Strike the proposed removal under Art.324(5)

Apply Art.324(5) with T N Seshan. An Election Commissioner may be removed only on the recommendation of the Chief Election Commissioner, and the provision exists to protect his independence against the executive.

Office	Removal protection under Art.324(5)
Chief Election Commissioner	Only in the like manner and on the like grounds as a Judge of the Supreme Court
Election Commissioner	Only on the recommendation of the Chief Election Commissioner

Removal by executive order, and still more for the offence of having voted against the Chief Election Commissioner, is void and would invert the very protection the clause creates.

Traps in this problem

Silence in the statute is not a want of power. Art.324 is a reservoir, so the absence of an express provision for a partial repoll does not make the order ultra vires.

Reservoir power is not immediately reviewable. Both of Ramesh's challenges are caught by Art.329(b) even though the repoll order is defective. Treating the defect as a ground for a writ now is where most answers go wrong.

Reasons cannot be supplied in the counter affidavit. Mohinder Singh Gill holds that a public order stands or falls on the reasons it discloses on its face.

Natural justice yields to election exigencies. The failure to hear the candidates is a defect, but the urgency of an election in progress substantially reduces its weight.

The Chief Election Commissioner is Chairman, not superior. Under Art.324(3) the other Commissioners are not subordinate, so being outvoted is lawful and cannot be a ground of removal.

Conclusion. The repoll order is within power but weakly reasoned. Both of Ramesh's challenges are barred at this stage by Art.329(b) and must await an election petition. The majority decision is valid, and the proposed removal is unconstitutional.