EC’s Reservoir of Powers Comes Under Review in SC

Article 324 of the Constitution has often been described as the reservoir of powers of the Election Commission; yet, the E.C. told the Supreme Court today that it cannot use those powers effectively, as it is circumscribed by the existing laws.

Article 324 of the Constitution deals with the superintendence, direction and control of elections vested in the Election Commission, and has been the subject matter of many judgments of the Supreme Court.  The Court has consistently maintained in catena of cases that it is the reservoir of all the powers of the E.C. to ensure a level playing field, so as to guarantee free and fair elections to the electorate.

Today, when the E.C.’s counsel, Meenakshi Arora told the Supreme Court bench of Justices J.Chelameswar and S.Abdul Nazeer that E.C.’s powers, are in practice, limited, it took everyone by surprise.  She pointed out that the Commission has sent more than 43 proposals to successive Governments at the Centre, which, if implemented, would make a huge difference to its exercise of power under Article 324.

As a reservoir of powers, Article 324 enables the E.C. to step in, and take decisions, where there is a legislative void, in order to ensure that the electoral process is free and fair.   The bench, therefore, queried whether the E.C. made use of the legislative void, to exercise its powers under Article 324 effectively.   The counsel for the intervener, Association for Democratic Reforms, Kamini Jaiswal, told the bench that Article 324 is also relevant in making the voters’ exercise of their franchise meaningful, by making available relevant information about the candidates.

Arora pointed out that one of the areas where the E.C. found itself helpless is with regard to disqualification of candidates who make false declaration at the time of filing nominations.     The reason is that Section 125A of the Representation of Peoples Act, 1951 seeks to impose a maximum punishment of only six months’ imprisonment on a candidate for filing a false affidavit at the time of filing nominations.  The E.C. has been pressing the Government for reconciling this with Section 193 Indian Penal Code, which imposes a maximum punishment of three years imprisonment on whoever intentionally gives or fabricates false evidence in a non-judicial proceeding. The E.C. has recommended enhancement of punishment under Section 125A to two years imprisonment.

Section 8 of the R.P.Act which deals with disqualification of candidates, on conviction of certain offences requires imprisonment of more than six months, if a candidate has to incur disqualification.   In view of the Government’s inaction on the E.C.’s recommendation, it has not been possible for the E.C., to disqualify candidates who submit false affidavits at the time of filing nominations, Arora told the bench.

Arguments in the Lok Prahari, Through Its General Secretary S.N.Shukla v Union of India and others, will continue on September 12, when the Centre is expected to file a fresh affidavit on the action taken against legislators who have amassed huge unaccounted wealth over the years.