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Constitutionally strong,functionally weak

The face-off between the West Bengal government and the state election commission frames the predicament of the SECs

Written by Bhanu Joshi |
April 12, 2013 2:22:55 am

The face-off between the West Bengal government and the state election commission frames the predicament of the SECs

Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the court,the stakes of the constituency as a whole are on trial… Neither turning a blind eye to the controversies which have arisen,nor assuming a role of over-enthusiastic activist would do,” observed the Supreme Court in a judgment that should be recalled as the West Bengal State Election Commission and the state government appear headed for an impasse on the conduct of panchayat elections. This incident has raised important questions on the status and functioning of state election commissions (SEC),and the tortuous relationship they share with state governments.

The SEC as a constitutional structure is part of the 73rd and 74th Constitutional Amendments,and derives powers from Article 243K and Article 243ZA,which state that “the superintendence,direction and control of the preparation of the electoral rolls for,and the conduct of,all elections to the panchayats/ municipalities shall be vested in a state election commission”. The article bears resemblance to Article 324,which mandates the creation of the Election Commission of India (EC). However,the task of the SECs is more complicated than that of the EC.

Unlike national and state elections,the conduct of local body elections varies. In some states,elections are held on the basis of multi-member constituencies; in others,elections to the office of the chairperson are direct. In the case of panchayati raj institutions,a voter may be called upon to cast four votes,one each for the ward panch,sarpanch,panchayat samiti member and zilla parishad member. More importantly,the process of conducting the local election is highly fragmented. The three critical processes in an election — preparation and updating of the electoral rolls,delimitation and preparation of the reservation roster and last,the conduct of the election — are managed by multiple institutions. In some states,the state government decides on the reservation and delimitation roster,the district commissioner,tehsildar or a specially appointed officer under the broad supervision of the SEC updates the electoral rolls,while the SEC is in charge of the conduct of the election. The complexity increases because,unlike national and state elections,local bodies have a constitutional obligation to provide reservation to women and backward classes. This fragmentation has paved the way for inadvertent delays due to non-preparation of electoral rolls or non-availability of the reservation roster.

There have been skirmishes in the past between SECs and state governments on who has the final word on the conduct of local elections. Recently,a petitioner approached the SC,contending the conduct of local elections in Karnataka on the basis of a 2007 reservation roster,in spite of a 50 per cent increase in reservations. The SEC expressed its inability to conduct polls owing to the state government’s non-compliance in providing a reservation roster according to the latest census. The Karnataka legislature,in a rare display of unanimity,passed a bill restricting the conduct of elections on account of needing more time for the reservation rotation process. The SC took strong exception and directed the government to make no attempt “to frustrate the process initiated by the SEC for holding and completing the election for the local bodies in accordance with the mandate of Article 243U of the Constitution”.

In West Bengal too,parties clashed over clause 42 and 43 of the West Bengal Panchayat Act,which directs the “state government,in consultation with the SEC”,to announce the election dates. The SEC has asserted that this contradicts Article 243K of the Constitution,and hence it sole propriety over the conduct and control of panchayat elections. While the high court will decide the merits of the case,the substantive question before it would be: who is in charge of announcing elections?

Answers will not be easy,as there is variation in legislation on this clause across India. In Punjab,the state government has the authority,while in Bihar and Andhra Pradesh,the SEC has complete independence on declaring the dates.

The very fact that SECs were given constitutional status to ensure the regular and fair conduct of elections bears testimony to the importance of a poll panel for local elections. Since the role mandated by the Constitution relating to the EC is embedded in the SEC,the SC’s views on this issue can serve as a guide.

In the landmark Mohinder Singh Gill vs Chief Election Commissioner (1978) case,the SC observed that Article 324 operates in areas left unoccupied by legislation and that the words “superintendence,direction and control as well as conduct of all elections are the broadest terms”. The judge further said that every contingency could not be foreseen and that the silence of the statute has no exclusionary effect,except where it flows from necessary implication.

Similar elaboration on the role and mandate of SECs is scanty. However,in the case of Kishan Singh Tomar vs Municipal Corporation of the City of Ahmedabad (2006),the SC said that it is necessary for the state government to recognise the significance of the SEC and that “it shall abide by the directions of the Commission in the same manner in which it follows the directions of the EC during the elections for Parliament and state legislatures.” It went on to state that in the domain of elections to panchayats and municipal bodies,SECs enjoy the same status as the EC.

While SECs may seem to be similar to the EC,the mandates of the two are highly varied. While the EC is the sole body for the superintendence and conduct of elections,the same is not true for SECs. The West Bengal judgment will be closely watched,and will create a precedence for how SECs are viewed.

The writer is a researcher at the Centre for Policy Research,Delhi

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