EC invokes Article 324 in West Bengal: Legal precedents show Mamata Banerjee's allegations against election body ill-founded
In Independent India, Election Commission has time and again asserted its power to ensure this impartiality and what it did in West Bengal was part of its core responsibility. Mamata Banerjee's targeting of ECI on this ground is completely ill-founded as constitutional provisions, landmark judgments and legal precedents are all in favour of the election watchdog
Article 324 of the Indian Constitution vests the power of “superintendence, direction and control” of elections to the Election Commission of India. The Election Commission which is a Constitutional body is responsible for conducting elections to the parliament and state legislatures.
The power of superintendence, direction, and control has a wider connotation and goes much beyond mere logistics. Its most important task is to ensure that elections are ‘free and fair’.
And in the exercise of this inherent power, the Election Commission on Wednesday decided to bar election campaigning in West Bengal from 10 pm on Thursday. The Election Commission, in a press statement issued on Wednesday evening, clarified that “no person shall convene, hold, attend, and join any public meeting in connection with the election."
What immediately provoked the Election Commission to take this decision were reports of "growing incidents of disruption and violence during the political campaigns/processions in the state". On Tuesday, BJP president Amit Shah held a roadshow in Kolkata where violent clashes took place between the workers of BJP and the ruling Trinamool Congress (TMC). The convoy of the BJP president was attacked with stones, allegedly by TMC supporters, triggering a clash between supporters of the two parties.
The Election Commission further said in the press statement that deputy election commissioner, in-charge of West Bengal took stock of the preparation and found that "there were distinct resistance and non-cooperation from the district administration and district police when it comes to providing a level-playing field to all candidates for campaigning and in providing a fearless threat-free environment to the voters."
What can be a serious indictment of the West Bengal government, the EC further added that the "observers pointed out that while on the surface everything looks fine, but in the frank interactions with the public the fear psychosis that is widely prevalent come out. They pointed out that utterances of AITC senior leaders on lines of ‘Central Forces will leave after elections while we will remain’ sends a chilling message among the officers as well as voters alike."
Following the Election Commission's decision, West Bengal Chief Minister Mamata Banerjee and other Opposition parties launched a full-blown attack on the poll watchdog. Mamata at a press conference said, "This is an emergency situation arisen because of the EC decision... It's not an Election Commission decision, it's a BJP decision. Modi is afraid of me and afraid of the people of Bengal. Amit Shah held a presser on Tuesday morning and threatened the commission... Is this order a result of that threat?"
While several political parties like Aam Aadmi Party (AAP), CPM, Samajwadi Party (SP) joined the chorus in criticising ECI, they conveniently overlooked, constitutional provisions, numerous High Courts and Supreme Court judgments and legal precedents while attacking the Commission.
The decision by EC to stop campaigning a day in advance is not understood. The first thing being expected by EC was action against the lumpen elements of BJP and TMC for violence yesterday. Why has no action been initiated? #Bengal
— Sitaram Yechury (@SitaramYechury) May 15, 2019
If a ban is intended for 72 hours, why is it starting at 10pm tomorrow? Is it to allow the two rallies of the PM before that? https://t.co/wn6MqmmrhD
— Sitaram Yechury (@SitaramYechury) May 15, 2019
If there are claims made by both sides, why has EC not released the video recorded by the official EC videographer of the incident? That should have been the first step, as demanded by our state Secretary @mishra_surjya before naming the culprits & punishing them pic.twitter.com/Cn9wRw2l4L
— Sitaram Yechury (@SitaramYechury) May 15, 2019
Article 324 talks about “superintendence, direction and control” of elections to be vested in the ECI. As interpreted and explained by legal expert RD Jain in his essay Electoral Process on the Horns of a Dilemma, the wider interpretation is that the Constitution empowers the Election Commission to lay down the policy to decide administrative matters of importance and also adjudicate electoral disputes. Therefore, besides administrative functions, it may be called upon to perform quasi-judicial duties also.
Aditya Sondhi, a senior advocate practicing at the High Court of Karnataka, writes in the Oxford Handbook of the Indian Constitution, "As regards the powers of the Election Commission, the Supreme Court in Kanhaiya Lal Omar construed the expression ‘superintendence, direction and control’ in Article 324 to include a specific or general order, and mandated that such power is to be ‘construed liberally so that the object for which the power is granted is effectively achieved’. Thereby the Commission was not circumscribed in the exercise of its power and could issue executive orders as may be required to discharge its functions”.
In Union of India versus Association for Democratic Reforms, the Supreme Court held that: "Under Article 324, the superintendence, direction and control of the 'conduct of all elections' to Parliament and to the Legislature of every State vests in Election Commission. The phrase 'conduct of elections' is held to be of wide amplitude which would include power to make all necessary provisions for conducting free and fair elections."
The Election Commission on several occasions, in the exercise of its power and responsibility, has regulated elections in a manner that has upset political parties and its leaders. And it was in the exercise of this inherent power only that ECI invoked section 324 to regulate election campaigning in West Bengal.
Legislative Assembly of Gujarat, which was constituted in March 1998 and its five-year term was to expire on 18 March, 2003, was dissolved on 19 July, 2002. The last sitting of the dissolved Assembly was held on 3 April, 2002, and as per the requirement of Article 174(1) of the Constitution, the time period between two sittings of Assembly cannot exceed six months. It was, therefore, the duty of the ECI to conduct elections before 3 October, 2002 which was the last date of expiry of six months (from the last sitting of the dissolved Assembly).
However, the ECI “while acknowledging that Article 174(1) is mandatory and applicable to an Assembly which is dissolved and further that the elections for constituting new Legislative Assembly must be held within six months of the last session of the dissolved Assembly, was of the view that it was not in a position to conduct elections before 3rd of October 2002".
This led to the then President of India APJ Abdul Kalam (in the exercise of its power under Article 143 of the Constitution) refer the case for the opinion of the Supreme Court. The reference essentially dwelt on one important issue: Can the Election Commission override certain Constitutional provisions (in this case Article 174) to fulfil its responsibility of conducting free and fair elections?
Supreme Court while upholding ECI decision, stated in the judgment, “The Constitutional mandate given to the Election Commission under Article 324 of the Constitution is to hold free and fair elections to the legislative bodies. And, in the Commissioner's considered view, if a free and fair election cannot be held to a legislative body at a given point of time because of the extraordinary circumstances then prevailing, Article 174 of the Constitution must yield to Article 324 in the interest of genuine democracy and purity of elections”.
Essentially, the apex court held that if the Election Commission believes that conducting free and fair elections is not possible in particular circumstances, it can make decisions that can override even constitutional principles.
While supporting the Election Commission decision and apex court judgment, noted jurist AG Noorani wrote in Frontline, "If this entails a violation of Article 174, President's Rule can be imposed since "the Government of the State cannot be carried on in accordance with the provisions of the Constitution within the meaning of Article 356(1)."
Debating for the unified election commission — against separate commissions for states— recommended by some other members of the constituent assembly, KM Munshi reasoned “certain provincial governments could not be trusted to be as impartial in elections as they should be”.
In Independent India, Election Commission has time and again asserted its power to ensure this impartiality and what it did in West Bengal was part of its core responsibility. Mamata Banerjee's targeting of ECI on this ground is completely ill-founded as constitutional provisions, landmark judgments and legal precedents are all in favour of the election watchdog.
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