Power of Election Commission of India - Some grey areas

Many grey areas need to be clarified once and for all, if the ECI is to be fully effective

 Power of Election Commission of India - Some grey areas

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• ECI in action: The Election Commission of India (ECI) notified the updated list of registered political parties, seeking deregistration of parties which do not contest elections. This issue has brought in focus the range of problems the ECI faces, due to lack of clarity on its precise powers.
• How many: There are more than two thousands registered unrecognised parties, and the Commission has sought the power to deregister (Cancel registration) inactive parties over fears of such entities misusing income tax exemption law.

1. The Commission has pushed for a wide range of electoral reforms to bring in digitisation, removing duplication of voters and enabling remote voting for Non-Resident Indians (NRIs), even migrant workers within India.
2. As of now, the ECI is not empowered to de-register parties on the grounds of violating the Constitution or breaching the undertaking given to it at the time of registration. Though ECI has the power to register parties under the Representation of the People Act,(RPA) 1951, but it does not have the power to deregister parties that are inactive.
3. A party can only be de-registered if its registration was obtained by fraud; if it is declared illegal by the Central Government; or if a party amends its internal Constitution and notifies the ECI that it can no longer abide by the Indian Constitution.

• Concerns: It is felt that many unrecognised parties are engaged in money laundering, given the income tax exemptions they enjoy. The Association of Democratic reforms (ADR), a watchdog NGO on electoral issues, reported that the number of registered unrecognised political parties has increased twofold in the last 10 years.

1. The Section 13A of the Income Tax Act, 1961 has given 100% exemption to political parties on its income from house property, income from other sources, capital gains and voluntary contributions received from any person however, subject to certain conditions.
2. There is confusion about the extent and nature of the powers available to the Commission in enforcing the Model Code of Conduct (MCC) and other decisions related to elections. The code does not say what the ECI can do; it contains only guidelines for the candidates, political parties, and the governments.
3. The MCC is framed on the basis of a consensus among political parties, it has not been given any legal backing. It does not have statutory value, and it is enforced only by the moral and constitutional authority of the EC.
4. A major concern is the abrupt transfer of senior officials working under State governments by an order of the commission. The transfer is governed by rules made under Article 309 of the Constitution which cannot be bypassed by the ECI under the purported exercise of the power conferred by Article 324.

• What can ministers do: According to the Model Code of Conduct, ministers cannot announce any financial grants in any form, make any promise of construction of roads, provision of drinking water facilities, etc or make any ad hoc appointments in the government. But section 123 (2)(b) of the RPA, 1951 says that the declaration of a public policy or the exercise of a legal right will not be regarded as interfering with the free exercise of the electoral right.

1. Since the EC does not have the power to disqualify candidates who commit electoral malpractices. At best, it may direct the registration of a case.
2. In the 2019 general election, the Commission admitted to the Supreme Court that it was “toothless”, and did not have enough powers to deal with inflammatory or divisive speeches in the election campaign.

• Summary: India's democracy rests on legitimacy, and that in turn rests on the powers of the Election Commission of India, and its ability to exercise them judiciously. Many grey areas in the legal sphere must be urgently rectified, so that ECI can ensure the proper functioning of the democracy via free and fair election. It is time for substantial changes being brought, for protection of the constitutional body. The Commission has to reinvent its approach so that the bedrock of democracy doesn’t shake at its foundations. To push for more transparency via making all data in electoral bonds available, will be a good start.
• EXAM QUESTIONS: (1) Explain the reason the Election Commission of India isn't fully empowered to tackle criminalisation of politics. (2) Why has the ECI taken no steps in making the electoral bonds data public? (3) How independent truly is the ECI? Explain with facts.

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