Polls During COVID Crisis: Is EC free to cancel or postpone elections?
As EC draws ire over holding Assembly polls, FactChecker speaks to ex-CEC head and finds out what the panel’s powers are
While Assembly elections have ended in Tamil Nadu, Kerala, Assam and Puducherry, West Bengal still has few phases left. The Election Commission (EC) of India has been facing ire everywhere for conducting elections despite a second wave of the COVID-19 pandemic. In fact, on April 9, when election in four states was already over, the EC issued a warning saying it can ban rallies and public meetings if campaigners don't follow COVID-19 guidelines.
As West Bengal wrapped up its sixth of eight phases of polling on April 22, 2021, the Calcutta High Court came down heavily on the EC.
"We are unable to reconcile with the fact that the Election Commission of India is not able to update us as to what action by way of enforcement of the circulars has been obtained." the High Court remarked.
Further, the Court said that the EC's responsibilities go beyond just "issuing circulars and holding meetings by themselves". This was in the wake of massive election rallies being held by contesting political parties in poll-bound states.
While parties like All India Trinamool Congress (TMC), Communist Party of India (Marxist), and the Congress decided to cancel their rallies, the BJP announced that it will only hold small public meetings with not more than 500 people.
While there have been calls to cancel election campaigns and roadshows, TMC also requested the EC to club the remaining phases into one. Instead, the EC cut short the campaign timings and banned campaigning between 7pm and 10am.
Amidst discussions and debates on the effectiveness of the EC in India, it is important to know the constitutional powers of the autonomous electoral body.
To better understand what the commission has control over and what it doesn't, FactChecker researched, read the Constitution and asked experts some key questions on the powers of the Election Commission.
What is Election Commission of India and what are its functions?
The EC is an autonomous constitutional authority responsible for administering election processes in India. The independent body administers election to the Lok Sabha, Rajya Sabha, State Legislative assemblies and the offices of the President and Vice-President in the country. Established on January 25, 1950, the Commission's powers, functions, tenure and eligibility are explained in the Article 324 to 329 of the Constitution.
The Election Commission consists of one Chief Election Commissioner and two election Commissioners who have a fixed tenure of six years. Their status and salary is equivalent to that of the judges of the Supreme Court of India.
One of the main important functions of the EC before the polls is to consult the Centre and plan the election schedules for the conduct of timely elections. The commission deals with locating the polling stations and counting centres along with preparing the electoral role and issuing photo identification cards to voters and assigning them to their centres.
The EC recommends the expenditure limits of an election campaign but these are approved by the government of the day. The expenses include public meetings, advertisements, roadshows, rallies, banners, vehicles and so on. The limits range between Rs 28 lakh to Rs 30 lakh per candidate during assembly elections.
Can the Election Commission cancel any elections?
The EC cannot call for or cancel an election. National or state elections are conducted once the term or period of five years of the Lok Sabha or state assembly ends. Article 172 of the Indian Constitution states that if the government dissolves before its stipulated term, it has the power to call for polls again and the EC is required to issue notifications to enable the elections to happen. In this case, the EC has to ensure a new Lok Sabha or Assembly is in place within six months of the dissolution. This is mentioned in Article 85(1) and Article 174 of the Constitution of India, 1949.
However, the EC can cancel a seat in the Assembly elections in case of a death or an offence committed by a candidate. This is because cancelling a seat will not prevent the formation of the new Assembly after elections.
Can the Election Commission postpone an election?
An election can be postponed only under extraordinary circumstances. Under Section 153 of the Representation of the People Act,1951 and Article 324 of the Indian Constitution, the EC can extend the time for completing an election provided it does not stretch beyond six months. For instance, if the EC wants to postpone elections in West Bengal due to COVID-19 pandemic, it can do so through its powers under Article 324. But it can be exercised only after the election schedule has been notified.
However, in case of a state of Emergency, an election can be postponed for one year and it can extend to a period of six months after the Emergency is lifted. While there is no specific legal provision that specifies postponement in non-Emergency situations, exceptional circumstances such as natural calamities, law and order situations or any other unforeseen circumstance which is beyond the EC's control can be the reasons for postponement or extension.
"The central government has the power to declare an emergency in which case the election will not be possible," SY Quraishi, the 17th Chief Election Commissioner of India, told FactChecker. "This has happened in Kashmir, Assam and Punjab. The emergency will be declared as an internal or external one. Hence this decision is made only by the ruling central government."
The EC will have to inform the government of its inability to conduct the elections, thereafter, the government would decide whether to impose the President's rule in the state.
In an exceptional case, in 1991, the EC postponed two rounds of the ongoing parliamentary elections for three weeks after the then Prime Minister's Rajiv Gandhi's assassination during his campaign in Tamil Nadu.
What else could the EC have done?
"The election rallies could have been banned and alternative means of publicity like virtual campaigns could have been used," former Chief Election Commissioner Quraishi said. Further Quraishi said clubbing the remaining phases would have been another way out.
"The proposal to club last three phases of polls in WB alongside the ban on all physical rallies is sensible, desirable and doable. Saving lives at all costs is the foremost objective." Qureshi tweeted on April 15, 2021.
"The main purpose of multi-phase elections is to conduct a peaceful election with the help of the paramilitary forces. Since the availability of the force is limited, the same force is deployed from one phase to another. An eight-phase poll would mean that a jawan would be deployed eight times. Every time you deploy them the risk increases," Quraishi explained.
Model Code of Conduct
The MCC consists of a set of guidelines (eight provisions) the EC issues to regulate political parties, campaigners and candidates prior to the elections. Under Article 324, the EC has power to supervise and conduct free and fair elections.
Political parties should limit criticism and focus primarily on their policies, past record and work. Activities or campaign speeches that could create mutual hatred or cause tension between different castes and communities must be prohibited.
According to Professor Jagdeep Chhokar of Association for Democratic Reforms, the elections should not have been divided into so many phases.
"The main question is why were so many phases planned in the first place?" Chhokar asked. The EC should have planned the Bengal elections like it had done several times in the past. Another point is that the EC issued COVID guidelines. These guidelines were not followed. The guidelines say that there cannot be more than five convoy vehicles. Doesn't the EC see the flouting of these guidelines in the news? Social distancing is not maintained and most don't wear masks. What kind of example is the EC setting?"
"The Election Commission has issued guidelines but has not implemented its own instructions. This is not acceptable," he added.