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\nBy Inder Jit<\/strong> The Supreme Court\u2019s judgement on electronic voting has been dismissed widely as of little consequence. Most people feel it matters little whether they vote by ballot or through an electronic machine. Yet the verdict deserves greater attention of the nation than it has received so far. It goes way beyond the Court\u2019s decision to set aside the election of a Kerala MLA. The judgement has raised a basic issue of vital importance to the provision of free and fair election in India. Since free and fair elections are the bedrock of any democracy worth its name, several questions arise. Who is to ensure free and fair elections under the Constitution? The Election Commission or Parliament? Can the Election Commission ignore Parliament? Or vice versa, can Parliament ride roughshod over the Election Commission? Whose view should prevail in the event of a clash of opinion? What was the basic scheme and approach of the founding fathers of the Constitution? By Inder Jit (Released on 13 March 1984) The Supreme Court\u2019s judgement on electronic voting has been dismissed widely as of little consequence. Most people feel it matters little whether they vote by ballot or through an electronic machine. Yet the verdict deserves greater attention of the nation than it has received so far. It […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[16],"tags":[],"class_list":{"0":"post-206540","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-features"},"_links":{"self":[{"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/posts\/206540","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/comments?post=206540"}],"version-history":[{"count":0,"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/posts\/206540\/revisions"}],"wp:attachment":[{"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/media?parent=206540"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/categories?post=206540"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/tags?post=206540"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\n(Released on 13 March 1984)<\/strong><\/p>\n
\nFirst the judgement. A division bench of the Court has held that the Election Commission\u2019s order directing the casting of ballot by machines was without jurisdiction according to the law. More important, the court disagreed with the contention of Mr. Ram Jethmalani and Mr. Ashok Sen, who appeared for the respondent and the Election Commission respectively, that the Constitution gave complete powers to the Commission for the conduct of elections under Article 324. The judges observed that the provisions of the Constitution could never have intended to make the Commission an apex body in respect of matters relating to the elections and conferring on it legislative powers ignoring Parliament altogether. If the Commission was armed with such unlimited and arbitrary powers, the judges observed if it ever happens that the person manning the Commission shares or is wedded to a political havoc or to bring about a Constitutional crisis, it could set at naught the integrity and independence of the electoral process, so important to and indispensable in the democratic system.
\nThe bench said that such an absolute and uncanalised power given to the Commission without providing any guidelines would itself destroy the basic structure of the rule of law, adding \u201cit is manifest such a disastrous consequence could never have been contemplated by the Constitution makers.\u201d Hence the judges said: \u201cWe construe Article 324 to 329 would reveal that the legislative powers in respect to matters relating to Parliament or State legislature vest in Parliament and no other body, and the Commission would come into the picture only if no provision has been made by Parliament in regard to the elections to Parliament or the State legislature.\u201d The judges said furthermore: \u201cThe power under Article 324 relating to superintendence, direction and control was actually vesting of merely all the executive powers and not the legislative powers.\u201d It was pertinent to indicate that the Kerala High Court, which had upheld the election of M.R. Pillai, \u201cfell into an obvious fallacy by acceptance of the position that the direction of the Commission was intended to operate in an uncovered field.\u201d
\nThe founding fathers were anxious to ensure free and fair elections and therefore, created an independent Election Commission which would function without fear or favour. Accordingly, Article 324 (1) of the Constitution provides: \u201cThe 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 office of President and Vice President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission)\u201d. However, all this would have been meaningless without protecting the independence of the Chief Election Commissioner. Therefore, the founding fathers also provided under Section 5 of the same Article that \u201cthe Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a judge of the Supreme Court\u201d. Further, \u201cthe conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment.\u201d
\nNot many remember that the founding fathers deliberately and advisedly picked the three words \u2014 superintendence, direction and control \u2014 from Article 14 of the Government of India Act of 1935. This key article, it needs to be pointed out, was specially designed to give the Secretary of State absolute powers to supervise, direct and control the functioning of the Governor General of India, who was authorized even to act \u201cin his discretion\u201d and \u201cexercise his individual judgement\u201d. In fact, a Constitution Bench of the Supreme Court held in 1978 that the power of the Commission in the superintendence, direction and control is unfettered and over-riding. Parliament, is no doubt, empowered under Article 327 to legislate on certain aspects of the elections, such as making provision with respect to election to legislatures. But the crucial point to remember here is this: all such legislation is subject to the absolute power accorded to the Election Commission to conduct a free and fair poll.
\nIn practice, the three words \u2014 superintendence, direction and control \u2014 also give the Election Commission two vital far-reaching rights; to virtually legislate and to be informed. The Chief Election Commissioner is empowered to legislate through \u201cdirection\u201d, implement the legislation through \u201csuperintendence\u201d and interpret the legislation through \u201ccontrol\u201d. Every little detail in regard to the conduct of elections comes under his overall control, direction and superintendence through Section (6) of Article 324 of the Constitution which provides: \u201cThe President, or the Governor of a State, shall, when so requested by the Election Commission,make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1)\u201d (Experts tell me that the word staff does not mean merely officials or clerks of the State. The word embraces everyone under the umbrella of either the Centre or the State Government, including the police and the army.)
\nThe Constitution Bench of the Supreme Court held in the Mohinder Singh Gill case in 1978 that \u201cthe Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties, and functions of many sorts, administrative or other, depending on the circumstances.\u201d It conceded that \u201cwhen appropriate laws are made under Article 327 by Parliament as well as under Article 328 by the State legislatures, the Commission has to act in conformity with those laws and the other legal provisions made thereunder.\u201d Nevertheless, it made it clear that both these articles \u201care subject to the provisions of the Constitution which include Article 324 and 329.\u201d It added: \u201cSince the conduct of all elections is vested under Article 324 (1) in the Election Commission, the framers of the Constitution took care leaving scope for exercise of residuary powers by the Commission in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time in such a large democracy as ours.\u201d
\nNot only that. The Court further explained: \u201cEvery contingency could not be foreseen or anticipated with precision. That is why there is no hedging in Article 324. The Commission may be required to cope with some situation which may not be provided for in the enacted law and the rules. That seems to be the raisiond\u2019etre for the opening clause in Article 327 and 328 which leaves the exercise of powers under Article 324 operative and effective when it is \u201creasonably called for in a vacuous area.\u201d The Court further held: \u201cOnce the appointment is made by the President, the Election Commission remains insulated from extraneous influences, and that cannot be achieved unless it has an amplitude of powers in the conduct of elections of course in accordance with the existing laws. But where these are absent\u2026 he must lawfully exercise his powers independently, in all matters relating to the conduct of elections, and see that the election process is completed properly, ina free and fair manner\u201d.
\nThe basic issue boils down to this: which is the apex body for the superintendence, direction and control of the elections: Parliament or the Election Commission? In the case of Kerala MLA, the Election Commission took the view that it had the necessary constitutional and statutory powers to go ahead with electronic voting under Article 324. But the Supreme Court has held that it was not open to the Commission to do so \u201cat its own sweet will.\u201d In support of its contention, the Court has argued that the powers of the Commission were \u201cmeant to supplement rather than supplant the law.\u201d It has also stated that the Commission could not be given \u201cunlimited and arbitrary powers\u201d as this could have \u201cdisastrous consequences\u201d which could \u201cnever have been contemplated by the Constitution makers.\u201d But in taking this stand, the Supreme Court appears to have overlooked the ultimate check provided by the founding fathers against the Commission going berserk. Article 324 also provides that the Chief Election Commissioner can be removed by Parliament in a like manner and on like grounds as a judge of the Supreme Court.
\nWhat next? We have now before us the judgement of a three-member division bench of theSupreme Court comprising Mr. Justice Murtaza Fazl Ali, Mr. Justice Vardarajan and Mr. Justice R. Misra. We also have the judgement of the five-member Constitution Bench comprising Mr. Justice M.H. Beg, Mr. Justice P.N. Bhagwati, Mr. Justice Krishna Iyer, Mr. Justice P.K. Goswami and Mr. Justice P.N. Singhal in theMohinder Singh Gill case. Obviously, the latest verdict holds the field. The Union Law Minister, MrJ.N. Kaushal, told the Rajya Sabhaon Friday that the law as now laid down by the Supreme Court\u2019s judgement \u201cis unexceptionable.\u201d.
\nBut the Opposition and some constitutional experts hold a different view. Some even describe the judgement as \u201cretrograde and preposterous\u201d. (Criticism of a judgement is permitted so long as motives are not attributed.) Mr. L.K. Advani suggested that either the Government or the Election Commission should approach the Supreme Court for a review. This, he said, was necessary to restore independence of the Election Commission and to ensure free and fair elections. The suggestion deserves to be accepted since the Supreme Court has gone wrong in virtually reducing the power of the Election Commission from superintendence, directionand control of elections to mere superintendence. An issue of fundamental importance is involved. \u2014 INFA<\/p>\n","protected":false},"excerpt":{"rendered":"