The Role of the Election Commission of India

Is it Maintaining Fairness and Safeguarding Democratic Ethos?

Rishikesh*

The legitimacy of democracy is rooted in the credibility of its elections. When the outcomes of elections are questioned, it is often because the institutions responsible for ensuring their validity are themselves under scrutiny. Elections are a fundamental mechanism through which voters exercise their constitutional right to choose their representatives. Democracy cannot survive without elections that are both free and fair. This means voters must be wellinformed and able to freely make their choices, with voting serving as a form of speech and expression.

The Election Commission of India (ECI) stands as a pivotal institution under the principle of separation of powers as outlined in Article 324 of the Indian Constitution. As an autonomous constitutional authority, the ECI is tasked with overseeing the conduct of elections to Parliament, the state legislatures, and the offices of the President and Vice President of India.

Ensuring that elections, the fundamental test of democracy, are free and fair is a significant responsibility entrusted to the ECI. The ECI’s role extends beyond mere supervision; it involves implementing electoral reforms, ensuring compliance

The ECI’s role extends beyond mere supervision; it involves implementing electoral reforms, ensuring compliance with legal frameworks, and upholding the integrity of the electoral process.

with legal frameworks, and upholding the integrity of the electoral process. By maintaining transparency, impartiality, and fairness, the ECI helps to reinforce public confidence in the democratic system. The Commission also plays a crucial role in addressing electoral malpractices and adapting to emerging challenges such as the influence of social media, technological advancements, and evolving political landscapes.

However, the success of elections in our nation relies on effective communication and coordination among the electorate, candidates, political parties, and the electoral system.

The Evolution of ECI

The Election Commission initially operated as a single-member body from its inception until 1988. On October 7, 1989, a notification by the President of India led to the appointment of two additional Election Commissioners (ECs) on October 16, 1989. This change was reversed on January 1, 1990, returning to a single-member commission. Then, on October 1, 1993, an ordinance from the President reinstated the multimember structure, adding two ECs to work alongside the Chief Election Commissioner (CEC).

The ECI has a distinguished history, with the first general election being a significant achievement given that the majority of India’s electorate at the time was largely illiterate. However, in recent years, the ECI’s reputation has faced considerable challenges. The Commission has been criticised for delaying decisions, reducing data transparency, and neglecting legitimate complaints from various candidates, especially those from the opposition parties.

The Dinesh Goswami Committee on Electoral Reform (1990) and the Law Commission in its 225th report on Electoral Reform (2015) recommended that the CEC and ECs be appointed by a committee comprising the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha. This interim mechanism was proposed until Parliament could enact relevant legislation.

It was recommended that the CEC and ECs be selected from individuals who hold or have held positions equivalent to the rank of Secretary to the Government of India. Recently, a new law stipulates that the President appoints the CEC and ECs based on the recommendations of a selection committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister. This marks the first instance where Parliament has established a formal mechanism for identifying suitable candidates for the positions of CEC and ECs. Notably, this new legislation excludes the Chief Justice of India from the selection process, a departure from the procedure outlined in the Anoop Baranwal case.

The Commission has been criticised for delaying decisions, reducing data transparency, and neglecting legitimate complaints from various candidates, especially those from the opposition parties.

Role of Returning Officer

Returning Officers (ROs) are designated by the ECI to oversee the electoral process within each Lok Sabha and state legislative assembly constituency. The ECI, in consultation with the state governments or Union Territories, appoints Returning Officers and Assistant Returning Officers for each constituency. This appointment is made under Sections 21 and 22 of the Representation of the People Act, 1951¹ . Typically, ROs are chosen from among senior government officials, often holding significant positions such as those in the Indian Administrative Service (IAS) or District Magistrates. Although occasional appointments of private individuals occur, these are infrequent due to a perceived lack of requisite experience in electoral management.

The role of ROs is pivotal in ensuring the smooth conduct of elections. They are entrusted with various responsibilities, including the scrutiny of candidate nominations, arrangement of polling stations, deployment of electoral staff, and oversight of voting procedures. ROs also play a critical role in maintaining the integrity and transparency of the electoral process -- from the acceptance and scrutiny of nomination papers to the accurate counting of votes.

The ROs also contribute significantly to voter education initiatives, ensuring that the voters are informed about their rights and the electoral procedures. Post-election, ROs compile and declare constituency-level results, thereby finalising the democratic exercise in their respective constituencies.

In essence, ROs serve as custodians of electoral integrity and procedural fairness, appointed by the ECI to uphold democratic principles and facilitate free and fair elections at both parliamentary and state legislative levels.

Key Responsibilities of the Returning Officer

Electoral Roll Management: ROs oversee the maintenance and updating of electoral rolls, including the incorporation of elector photographs, management of the Booth Level Officer system, and distribution of Electoral Photo Identity Cards and Voter Information Slips.

Technology and Training: They manage the deployment of Electronic Voting Machines (EVMs) with Voter Verifiable Paper Audit Trail (VVPAT) systems, ensure their proper functioning, and conduct comprehensive training for staff on their operation, as well as other aspects of the electoral process.

Nomination Process and Symbol Allocation: ROs administer the nomination, scrutiny, and withdrawal of candidatures, and oversee the allotment of election symbols, ensuring compliance with all legal requirements and instructions of the Commission.

Code of Conduct and Expenditure Monitoring: They are responsible for implementing and rigorously enforcing the Model Code of Conduct and the Compendium of Instructions on Expenditure Monitoring, collaborating with Observers to

maintain electoral integrity and curb undue financial influence.

Media Regulation and Public Communication: ROs enforce guidelines on media advertisements, address instances of paid news, maintain positive media relations, and effectively communicate electoral measures to the public to build confidence in the process.

Stakeholder Engagement: : They conduct regular meetings with political party representatives and candidates to disseminate information, address concerns, and preempt potential conflicts.

Legal Compliance and Documentation: ROs have to maintain thorough knowledge of electoral laws, ensure adherence to Commission’s instructions, and keep accurate records of all electoral processes and decisions.

Security and Crisis Management: Coordination with law enforcement is part of ROs’ responsibilities so as to ensure a secure electoral environment, develop contingency plans, and make prompt decisions to address emergent issues during the electoral process.

Observer Coordination and Reporting: They collaborate with General and Expenditure Observers appointed by the ECI, facilitate their monitoring role, and provide timely reports as required.

Accessibility and Inclusivity: ROs implement measures to ensure polling stations are accessible to all voters, including those with disabilities and from marginalised groups, and oversee the entire polling and counting process to ensure a free and fair election.

Role of Presiding Officer

The Presiding Officer (PO) plays a pivotal role in the electoral process, as stipulated by Sections 26 and 28A of the Representation of the People Act, 1951. During the electoral period, which spans from the announcement of the election to the declaration of results, the PO, along with other designated officials, is considered to be on deputation to the ECI. This arrangement ensures that these officials operate under the Commission’s direct supervision, control, and guidance throughout the electoral process² .

As the primary authority at a polling station, the PO’s paramount duty is to safeguard the integrity of the voting process, ensuring it remains free, fair, and transparent. To fulfill this crucial role effectively, the PO

The origin of the MCC dates back to 1960 when a small set of dos and don’ts for the assembly election in Kerala were released.

must possess a comprehensive understanding of the relevant legal framework, procedural guidelines, and directives issued by the ECI.

The PO’s responsibilities cover a wide range of tasks within the polling station. These include, but are not limited to, overseeing the voting process, addressing any issues that may arise, and maintaining order and decorum. To execute these duties proficiently, the PO is vested with substantial legal authority to manage and control all activities within their designated polling stations.

POs’ duties can be broadly categorised into three phases -- pre-poll, during the polling process, and post-poll.

In the pre-poll phase, they are tasked with ensuring the proper setup of polling stations and conducting mock polls on EVMs and VVPATs to verify their functionality.

During the polling process, their responsibilities include:

Informing candidates and polling agents about vote secrecy protocols.
Publicly reading declarations and obtaining necessary signatures.
Maintaining accurate records in Form 17A.
Regularly reconciling vote totals with Form 17A entries.
Communicating polling status updates to the Returning Officer.
Documenting significant events in the Presiding Officer’s diary.

As the polling period concludes, the presiding officer must ensure timely closure of the poll; activate the ‘close’ function on the control unit after the final vote is cast; meticulously complete all required forms; and, deactivate the control unit and disconnect the VVPAT from the ballot unit.

Throughout this process, Sector Officers serve as intermediaries between Presiding Officers and Returning Officers, facilitating communication and support.

Model Code of Conduct

The Model Code of Conduct (MCC) is a set of guidelines agreed upon by all stakeholders and implemented during elections to ensure that the campaigning, polling, and counting processes are orderly, clean, and peaceful. It also aims to prevent any misuse of state resources and finances by the ruling party. Although it lacks statutory authority, the Supreme Court has consistently upheld its importance. The MCC helps the ECI in fulfilling its mandate, given by Article 324 of the Constitution, of supervising and conducting free and fair elections. The Commission has full authority to investigate any violations of the code and impose penalties accordingly

The origin of the MCC dates back to 1960 when a small set of dos and don’ts for the assembly election in Kerala were released. It was first circulated by the ECI to recognise political parties during the 1962 Lok Sabha General Elections, with state governments requested to ensure its acceptance. It was adhered to in the 1967 Lok Sabha and Assembly elections. In 1968, the ECI engaged with political parties at the state level to maintain minimum standards of behaviour for free and fair elections. The code was again circulated during the 1971-72 General and State Assembly elections. In 1974, it was issued to political parties in states with upcoming general elections.³

In 1979, the ECI expanded the code in consultation with political parties, adding restrictions on the ruling party to prevent the misuse of power. The code was consolidated and reissued in 1991, evolving into its current form. Judicial recognition came in 2001 when the

Supreme Court, in the Union of India vs. Harbans Singh Jalal case, ruled that the code would be enforced once the Commission issues a press release announcing the elections, settling the issue of its enforcement date.

Controversies Surrounding the ECI

Over the last few years the working of ECI has come under a cloud with a number of questions and doubts being raised on its impartiality. These are:

The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Bill, 2023, was first introduced during the monsoon session in August and came months after a Constitution Bench of the Supreme Court ruled in March that Election Commissioners should be appointed by the President based on advice from a committee comprising the Prime Minister, the Leader of Opposition (LOP) in the Lok Sabha and the Chief Justice of India (CJI). The new legislation states that the CEC and the ECs (the number of ECs will be determined periodically by the President) will be appointed by the President based on the recommendations of a selection committee comprising the Prime Minister, a cabinet minister and the LOP in the Lok Sabha (or the leader of the single largest opposition party). The legislation has raised questions about overriding executive control over the poll body⁴ .

The role of the ECI has come under the scanner in the wake of the Supreme Court declaring unanimously electoral bonds as “unconstitutional”. The ECI’s shifting stance on electoral bonds has raised concern. Initially, before the scheme’s introduction in 2018, the Commission cautioned the Ministry of Law, stating that electoral bonds could enable political parties to obscure illegal foreign donations and potentially escalate the use of black money in political funding through shell companies. However, in 2021, the EC reversed its position and opposed a Supreme Court plea to halt the issuance of new electoral bonds ahead of assembly elections in West Bengal, Kerala, Tamil Nadu, Assam, and Puducherry. Between 2017-2018 and 2022-2023, electoral bonds worth Rs 12,008 crore were sold, with the ruling BJP receiving nearly 55 per cent or Rs 6,564 crore.⁵

Opposition parties have raised questions on the use of EVMs and urged the Commission to intervene. ECI’s use of VVPAT tallies has faced scrutiny since their nationwide implementation in the 2019 Lok Sabha elections. VVPATs, which display a paper slip for seven seconds to verify the vote before dropping it into a sealed box, cover all EVMs. The Supreme Court mandates verification of VVPAT slips from five randomly selected polling stations per assembly constituency. Despite a promise in Parliament, the Union government has not responded in four years regarding potential discrepancies between EVMs and VVPATs from the 2019 elections.

Former CEC Arun Goel’s resignation in March 2024 raised serious questions. His appointment too was not free of controversy.

The ECI is embroiled in a controversy concerning the transparency of voter turnout data. The poll body decided not to post Form 17C. The ECI asserted before the Apex Court: “It is submitted that there is no legal mandate to provide Form 17C to any person other than the candidate or his agent.”

References

Election Commission of India. (2009). HANDBOOK FOR RETURNING OFFICERS (At Elections where Electronic Voting Machines are used). In Nirvachan Sadan, Ashoka Road, New Delhi-110 001. https://bit.ly/3Lz3A1d
Presiding officer hadbook. (n.d.). In https://bit.ly/3A5aLvu
Singh, U. K., & Roy, A. (2018). Regulating the electoral domain: the Election Commission of India. Indian Journal of Public Administration/Indian Journal of Public Administration, 64(3), 518–530. https://doi.org/10.1177/0019556118788497
Five reasons There’s a dark cloud over Election Commission’s transparency and functioning. (n.d.). The Wire. https://bit.ly/4fgineN

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