Amid a standoff between the Bengal SES and BJP over the withdrawal of a notification that had extended the last date of nominations in panchayat polls, The Indian Express explains an SEC’s role and powers.
What is a State Election Commission’s mandate? How is it different from that of the Election Commission of India?
Supervision and conduct of elections are entrusted with two constitutional authorities — the Election Commission (EC) of India and the State Election Commissions (SECs). Set up in 1950, the EC is charged with the responsibility of conducting polls to the offices of the President and Vice President of India, to Parliament, and to the state Assemblies and Legislative Councils. The SECs, which were appointed in each state more than four decades after the EC was set up, supervise municipal and panchayat elections. Although the two authorities have a similar mandate, they are independent of each other and draw powers from different laws. The SEC in Bengal draws it powers from the West Bengal State Election Commission Act, 1994. It has nothing to do with the Representation of the People Act, which lays down the EC’s powers. Each SEC is governed by a separate state Act.
Why were the SECs established decades after the EC?
Under the Constitution, establishment of local self-government institutions is the responsibility of the states (entry 5, List II, Seventh Schedule). However, experience showed that not all state governments were serious about empowering Panchayati Raj institutions as elections were not being conducted regularly. The Constitution was amended in 1992 to define the term (five years) for these institutions. Simultaneously, another provision was made for setting up a constitutional authority, the SEC, on the lines of the EC to conduct regular panchayat elections. The SEC was to be appointed by the respective state governments.
The ECI and SECs have a similar mandate; do they also have similar powers?
The provisions of Article 243K of the Constitution, which provides for setting up of SECs, are almost identical to those of Article 324 related to the EC. In other words, the SECs enjoy the same status as the EC. For example, like the removal of a Chief Election Commissioner, the
State Election Commissioner can only be removed via impeachment — except that the latter’s removal will be passed by the state Assembly and not by Parliament. In 2006, the Supreme Court emphasised the two constitutional authorities enjoy the same powers.
In Kishan Singh Tomar vs Municipal Corporation of the City of Ahmedabad, the Supreme Court directed that state governments should abide by orders of the SECs during the conduct of the panchayat and municipal elections, just like they follow the instructions of the EC during Assembly and Parliament polls.
The BJP has approached the Supreme Court and the Calcutta High Court on the West Bengal SEC’s withdrawal of its earlier notification extending the last date for filing nominations for the panchayat polls.
How far can courts intervene?
Courts cannot interfere in the conduct of polls to local bodies and self-government institutions once the electoral process has been set in motion. Article 243-O of the Constitution bars interference in poll matters set in motion by the SECs; Article 329 bars interference in such matters set in motion by the EC. Only after the polls are over can the SECs’ decisions or conduct be questioned through an election petition. This powers enjoyed by the SECs are the same as those by the EC. This is also the reason why the Supreme Court this week refused to issue any directions to the West Bengal SEC in response to the BJP’s plea to extend the last date of nomination.
How far do the SEC and EC collaborate for an election?
They operate independently. In fact, in a letter to all states in 1996, the EC had clarified that its chief electoral officers, who represent the EC in each state, should not be entrusted with any work related to preparation of electoral rolls for municipal or panchayat polls. The EC, however, has shared its electoral rolls with the SECs in the past. Initially it would also lend its electronic voting machines to SECs for municipal polls, until the latter bought their own.
But this is where the cooperation ends. The EC has no role in the actual conduct of local body elections.
In practice, are the SECs as independent as the EC?
Although state election commissioners are appointed by the state governors and can only be removed by impeachment, in the last two decades many have struggled to assert their independence. One of the most widely remembered cases of confrontation happened in Maharashtra in 2008. Then state election commissioner Nand Lal was arrested and sent to jail for two days in March 2008 after the Assembly found him guilty of breach of privilege in an alleged conflict over his jurisdiction and powers. Lal had asserted that as the state election commissioner he had the power to hold elections to the offices of mayor, deputy mayor, sarpanch and deputy sarpanch.
After a Congress MLA moved a privilege motion objecting to the notification, the privileges committee of the Assembly asked him to appear and explain. Lal did not, which led to the committee concluding that he was creating hurdles in “constitutional and legislative functions”, a breach of privilege. He was sent for two days of civil imprisonment.
(Adapted from Indian Express)