Policy, Practice and Power: Evaluating the operations of Election Commission of India and its lessons for SDG 16

Abstract

This Article is an attempt to understand the ambiguity in the constitutional status of the Election Commission of India, when it exercises its constitutionally conferred power under Art. 324 of the Constitution of India. Although Art. 324 prescribes very broad powers, the Constitutional Courts have not clearly laid out the outer limit of the exercise of such powers thereby resulting in the ambiguous constitutional status. The very first ambiguity is over the test to determine if the ECI can exercise its constitutional power for a given instance. Two different decisions delivered by Supreme Court’s Three Judge Bench have recognised different tests for the aforesaid purpose. It is not clear on whether the authoritative test will be followed for future instances. The second ambiguity is over the ECI’s exercise of powers under the Symbols Order, 1968 that has been brought out by the ECI itself. The third ambiguity is over the adjudicatory powers that have been accorded to the ECI in certain specified matters. The fourth ambiguity is over the requisite assistance that can be claimed by the ECI for proper exercise of its powers under Art. 324(6) of the Constitution. The fifth ambiguity is over the legal tenability of an amendment made by the ECI to its own 1968 Symbols Order. This article is based on primary literature e.g., constitutional provisions, election symbols order 1968, the conduct of election rules 1961, reported judgments of Supreme Court of India and Central Statutes i.e. Armed Forces (Special Powers) Act 1958, The Disaster Management Act 2005. This article will contribute to the discussion on SDG 16 i.e., in creation of strong institution and in providing justice for everyone.