Article 324 in The Constitution Of India 1949
324. Superintendence, direction and control of elections to be vested in an Election Commission
(1) 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)
(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission
(4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause ( 1 )
(5) 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
(6) The President, or the Governor of a State, shall, when so requested by th 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 )
Q. The Election Commission has invoked its powers under Art 324 to curtail campaigning in West Bengal following violence in Kolkata. What powers does the Constitution give ECI; how has SC interpreted Art 324?
The Election Commission of India passed an unprecedented order Wednesday, ending the campaign in West Bengal at 10 pm the following day 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 decisions were taken under Article 324 of the Constitution, in response to street violence in Kolkata between cadres of the BJP and Trinamool Congress.
Just a month earlier, on April 15, the ECI had told the Supreme Court that its powers to discipline politicians who sought votes in the name of caste or religion were “very limited” — only to turn around and crack the whip on Yogi Adityanath, Maneka Gandhi, Mayawati, and Azam Khan after being scolded by the court, which also said it would examine the ambit of the Commission’s powers.
ECI’s freedom, responsibility
There are just five Articles in Part XV (Elections) of the Constitution. The Constituent Assembly was concerned mainly with ensuring the independence of the Election Commission. Babasaheb Ambedkar introduced this Article on June 15, 1949, saying “the whole election machinery should be in the hands of a Central Election Commission, which alone would be entitled to issue directives to returning officers, polling officers and others”.
Article 324 vests “in an Election Commission” the “superintendence, direction and control of elections”. 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.
The Supreme Court in Mohinder Singh Gill & Anr vs The Chief Election Commissioner, New Delhi and Ors (1977) held that Article 324 “operates in areas left unoccupied by legislation and the words ‘superintendence, direction and control’ as well as ‘conduct of all elections’ are the broadest terms”. The Constitution has not defined these terms
Article 324, the court said, “is a plenary provision vesting the whole responsibility for national and State elections” in the ECI “and, therefore, the necessary powers to discharge that function”.
The framers of the Constitution, the court said, had left “scope for exercise of residuary power 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…”
Importantly, however, the court, while observing that “legislators are not prophets but pragmatists”, and that the “comprehensive provision in Art. 324 (is) to take care of surprise situations”, underlined that “that power itself has to be exercised, not mindlessly nor mala fide, nor arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation.”
The court observed: “No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commissioner cannot defy the law armed by Art. 324. Likewise, his functions are subject to the norms of fairness and he cannot act arbitrarily. Unchecked power is alien to our system.”
ECI’s role in West Bengal
The Representation of the People (Amendment) Act, 1988 (Act 1 of 1989) 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.
In N P Ponnuswami (1952), 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). Last week, the court rejected a plea seeking a direction to the ECI to advance the timing of voting to 5.30 am for the last phase of the election in view of the heat and the fasting of Muslims during the month of Ramzan, saying “We cannot get into poll times. It is the Election Commission’s call.”
The ECI’s credibility has suffered during these elections.
It had no convincing logic for a seven-phase election in West Bengal or a three-phase vote in a single constituency in Jammu and Kashmir, and gave no reason for not holding simultaneous Assembly elections in J&K and by-elections in Tamil Nadu. In taking action on complaints of violations of the Model Code of Conduct, it has been selective.
The reduction of the campaign time in West Bengal by 19 hours — to 10 pm on Thursday — seems clearly arbitrary. The ECI has punished candidates of the Congress, Left, and Independents — both in the constituency where the violence took place and elsewhere — for no fault of theirs.
Overview: The Election Commission of India has passed an unprecedented order ending the campaign in West Bengal. It also removed the state’s Home Secretary, and a senior police officer.
The decisions were taken under Article 324 of the Constitution, in response to street violence in Kolkata between cadres of two political parties.
What Article 324 and RPA say on this?
Article 324 vests “in an Election Commission” the “superintendence, direction and control of elections”.
Parliament enacted The RP Act of 1950 and 1951 to define and enlarge the powers of the Commission.
The RP Amendment Act, 1988 (Act 1 of 1989) 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 EC. This should be 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 EC.
Historical background:
Ambedkar introduced the Article 324 on June 15, 1949, saying the whole election machinery should be in the hands of a Central EC, which alone would be entitled to issue directives to returning officers, polling officers and others.
Need for and significance of A 324:
Mohinder Singh Gill vs The CEC, New Delhi and Others (1977): The Court held that Article 324 “operates in areas left unoccupied by legislation and the words ‘superintendence, direction and control’ as well as ‘conduct of all elections’ are the broadest terms”. The Constitution has not defined these terms.
Article 324 is a plenary provision vesting the whole responsibility for national and State elections in the ECI and therefore, the necessary powers to discharge that function.
Comprehensive provision in Art. 324 is necessary to take care of surprise situations.
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