Periodic, free and fair elections, a basic structure of the Constitution
- Part 2 -

Aaron Keishing *

Polling at Sandang Senba Maring, Sadar Hills for ADC election in June 2015 :: Pix - Bishwarjit Taorem

No reason can be given by the State Government for escaping the mandate of the Constitution. The State Government in the matter has been slack in not taking steps but the State Government is stating difficulties in holding election in time, which cannot be the case having regard to the constitutional mandate.

The State Government cannot use that proviso to Section 13(1) as a reason or excuse or ruse to postpone holding of election to the local body. Having regard to the dicta of the Hon’ble Supreme Court that there can be no excuse to postpone election, and the Commission being an independent constitutional body is under a duty to hold election in time.

It is no doubt true that democracy is a part of the basic feature of the Indian Constitution and periodical, free and fair election is the substratum of democracy. But, there is no free and fair periodic election, it is a doomsday for democracy. This was emphasized in M.S. Gill v. Chief Election Commissioner, (1978) 1 SCC 405 thus:

“12. A free and fair election based on universal adult franchise is the basic, the regulatory procedures vis-à-vis the repositories of functions and the distribution of legislative, executive and judicative roles in the total scheme, directed towards the holding of free elections, are the specifics. The super authority is the Election Commission, the kingpin is the Returning Officer, the minions are the presiding officers in the polling stations and the electoral engineering is in conformity with the elaborate legislative provisions.”

So far as the framing of the schedule or calendar for election is concerned, according to the Hon’ble Supreme Court, the same is in the exclusive domain of the Election Commission, which is not subject to any law framed by Parliament. It has been observed that “Parliament is empowered to frame law as regards conduct of elections but conducting elections is the sole responsibility of the Election Commission.

As a matter of law, the plenary powers of the Election Commission cannot be taken away by law framed by Parliament. If Parliament makes any such law, it would be repugnant to Article 324. Holding periodic, free and fair elections by the Election Commission are part of the basic structure.”

In the words of the Constitution Bench of the Supreme Court in T.N.Seshan v. Union of India (1995) 4 SCC 611: “Democracy being the basic feature of our constitutional set-up, there can be no two opinions that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country.

In order to ensure the purity of the election process it was thought by our Constitution-makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference.”

Thus Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process.

According to the Hon’ble Supreme Court, the constitutional scheme with regard to holding of the elections to Parliament and the State Legislatures is quite clear. First, the Constitution has provided for the establishment of a high-powered body to be in charge of the elections to Parliament and the State Legislatures and of elections to the offices of President and Vice-President. That body is the Commission.

Article 324 of the Constitution contains detailed provisions regarding the constitution of the Commission and its general power. The superintendence, direction and control of the conduct of elections referred to in Article 324 (1) of the Constitution are entrusted to the Commission. The words “superintendence”, “direction” and “control” are wide enough to include all powers necessary for the smooth conduct of elections.

As per the observations, judgments, directions and orders of the Hon’ble Supreme Court in various cases, the Election Commissioner is a high Constitutional Authority charged with the duty of ensuring free and fair election and the purity of electoral process. But man-made situation intended to defer holding of election should be sternly dealt.

In any case, the duration of the Council is fixed as five years from the date of notification or nomination and no longer. It is incumbent upon the SEC and other authorities to carry out the mandate of the Constitution and to see that a new Council is constituted in time and elections to the Councils are conducted before the expiry of its duration of five years.

From the opinion thus expressed by the Apex Court, it is clear that the State Election Commission shall not put forward any excuse based on unreasonable grounds that the election could not be completed in time. The SEC shall try to complete the election before the expiration of the duration of five years’ period as stipulated in clause (1) of section 13 of the Act, 1971 and not yield to situations that may be created by vested interests to postpone elections from being held within the stipulated time.

It is true that the SEC shall take steps to prepare the electoral rolls by following due process of law, but that too, should be done timely and in no circumstances, it shall be delayed so as to cause gross violation of the mandatory provisions. These are the observations and judgments of the Hon’ble Apex Court in different cases which are similar to ours.

The entire provision in the Constitution was inserted to see that there should not be any delay in the constitution of the new Council every five years and in order to avoid the mischief of delaying the process of election and allowing the nominated bodies to continue, the provisions have been suitably added to the Constitution.

The decision taken by the State Govt. stating that due to rainy session, it has become necessary to defer the elections, or by invoking the provisio to Section 13(1) cannot be accepted as a legal and justifiable ground to postpone the elections and continue the affairs of the local body. There is deliberate intention on the part of the Govt. to postpone the elections and the action taken cannot be justified as the postponement was a mala fide act.

The State Govt. has given one reason as to why elections to ADCs cannot be held at the end of term of the present Council, i.e. June is a rainy session which is not maintainable in the eyes of law and cannot be a factor to be taken into consideration for the purpose of postponing the election to the local body. Thus the reason given by the State that rainy season is imminent and therefore at this stage, election to ADCs is not possible, cannot be accepted. And without assigning any reason, the ADCs have been put in supersession mode which is clearly illegal.

It is necessary to analyze that Clause (1) of Section 13 of the Act, 1971 categorically states that every Council, unless sooner dissolved under any law for the time being in force shall continue for five years from the date notification or nomination and no longer. The import of Clause (1) is that a period of five years from the date of the first notification or nomination is the term fixed for a Council.

On the completion of five years, the Council cannot continue for any further duration except when there is administrative difficulties. Therefore, it is incumbent upon the SEC and other authorities including the State Government to carry out the mandate of the Constitution and ensure that a new body is constituted in time by holding election before expiry of five years as stipulated in the said clause.

Thus, the period of five years is constitutionally stipulated and it is the maximum period. That is also the minimum period of a Council, unless dissolved earlier. For no reason whatsoever the term of five years can be extended beyond five years. Thus, by virtue of Clause (1) to Section 13, the term of the Council has been fixed with certainty.

Of course, there is a proviso and stated that there could be exceptional circumstances for not holding election in time, such as administrative difficulties, but the fact that there could be certain reasons to postpone the election would not empower the Commission to justify delay in the process of conduct of election. Postponement of election must be under exceptional circumstances as stated by the Hon’ble Supreme Court and the proviso to Section 13(1).

Thus, the object of Clause (1) of Section 13 is to ensure that there is no delay in the process of holding election in time by allowing local bodies to continue beyond the statutory period of five years. Clause (2) of Section 13 is not relevant for this case and hence, would not necessitate any consideration.

When the term of the Council expires, then automatically under Clause (1) of Section 13, election would have to be held. That reconstitution on the expiry of the term of the Council or on dissolution cannot be beyond a period of five years as the term of a Council is five years and no longer. Having regard to the mandate of the Constitution and Section 13(1) election to ADCs must be held in time without reference to the aforesaid reason cited by the State Government as that cannot be the reason to postpone the election.

Despite the reason assigned by the State for not holding election in time to the ADCs, and having regard to constitutional mandate and the judgments of the Hon’ble Supreme Court on the point, elections to ADCs must be held on the expiry of the term. As the State Election Commission has power of superintendence, direction and control of elections and preparation of electoral rolls as well and as that power is coupled with a duty, being an independent authority, it must be exercised scrupulously.

The regular, periodic, free and fair election is the basic structure of the Constitution, of which the State Govt. cannot suppress arbitrarily.


Concluded ...