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Recently, the Election Commission of India (ECI) transferred a fig of elder officers successful immoderate of the election-bound States arsenic soon arsenic their predetermination schedules were announced. In the predetermination docket for 2026, polls are to beryllium held successful 4 States, namely, Assam, Kerala, Tamil Nadu and West Bengal, and the Union Territory of Puducherry.
In the State of West Bengal, the Chief Secretary and Director General of Police — the caput of State medication and the caput of the constabulary unit — were among respective officials transferred overnight without the consent oregon anterior cognition of the State government. The ECI claimed that specified a measurement had been taken to guarantee escaped and just elections successful those States. The States concerned, peculiarly West Bengal, were virtually stunned by the ferocity of these transportation orders, which person astir paralysed the administration. The important question present is whether it is wrong the powers of the ECI to transfer, successful this manner, the heads of State medication successful the sanction of ensuring escaped and just elections. Are we past to reason that, without transferring a fistful of apical officers, the ECI cannot behaviour escaped and just elections? There are galore specified disturbing questions that originate from these transfers.
It is hard to find immoderate statute nether which specified transfers tin beryllium made by the ECI. Of course, it ever points to Article 324 of the Constitution (Superintendence, absorption and power of elections to beryllium vested successful an Election Commission) to warrant specified actions. It is existent that the Article confers unspecified powers connected the ECI to behaviour escaped and just elections.
Article 324 and scope of powers
The Supreme Court of India had, successful Mohinder Singh Gill and Anr. vs The Chief Election Commissioner, New Delhi and Ors. (1978), and successful a big of different cases, held that Article 324 is simply a plenary proviso which is successful information a reservoir of powers that tin beryllium utilized by the ECI whenever the request arises to guarantee escaped and just elections. But successful each specified cases the Court has added a rider that specified powers tin beryllium utilized lone wherever the tract is unoccupied by a statute. In different words, the ECI cannot gully immoderate specified powerfulness from Article 324 wherever a instrumentality made by Parliament oregon a State legislature holds the tract successful which lawsuit it has to obey that law.
In Mohinder Singh Gill, the Court made the pursuing important observations which person intelligibly laid retired the scope of the powers nether this Article arsenic good arsenic its limitations. It said, “The Constitution, contemplates a escaped and just predetermination and vests broad responsibilities of superintendence, absorption and power of the behaviour of elections successful the Election Commission. This work whitethorn screen powers, duties and functions of galore sorts, administrative oregon other, depending connected the circumstances”.
However, determination is simply a caveat. The Court added, “Two limitations astatine slightest are laid connected its plenary quality successful the workout thereof. Firstly, erstwhile Parliament oregon immoderate State Legislature has made valid law, relating to oregon successful transportation with elections, the Commission shall enactment successful conformity with, not successful usurpation of specified provisions but wherever specified instrumentality is soundless Art. 324 is simply a reservoir of powerfulness to, enactment for the avowed intent of, not divorced from pushing guardant a escaped and just predetermination with expedition. Secondly, the Commission shall beryllium liable to the regularisation of law, enactment bona fide and beryllium amenable to the norms of earthy justness successful so-far arsenic conformance to specified canons tin reasonably and realistically beryllium required of it arsenic fairplay-in-action successful a astir important country of the law order, viz., elections.”
The contented of statutory backing
The officers belonging to the each India services are governed by the All India Services Act and the rules made thereunder. The transportation of an serviceman is the exclusive prerogative of the government. The each India work officers who are serving a State authorities are nether the administrative power of the State authorities which has exclusive authorization to transportation them astatine immoderate time.
Under the Seventh Schedule of the Constitution, the State Public Services are nether the exclusive power of the State governments. It is the exclusive relation of the governments — the State and the Union — to woody with each aspects of the services of the officers serving nether these governments.
The important question that has arisen successful the discourse of the transportation of elder officials of the State governments nether the orders of the ECI is whether this enactment has immoderate statutory backing. The work of the ECI is to behaviour elections successful a escaped and just manner. Of course, it has each the powers to execute this task successful accordance with the mandate of the Constitution and statute.
Article 324(6) requires the State authorities oregon the Union authorities to marque disposable to the ECI connected request the unit required by it to behaviour elections. The Representation of the People Act of 1950 arsenic good arsenic the Representation of the People Act, 1951 incorporate elaborate provisions that woody with the duties and powers of the ECI. Nowhere bash immoderate of these Acts incorporate immoderate proviso that empowers the ECI to transportation the caput of a authorities medication oregon the caput of the authorities constabulary force, portion keeping the State authorities successful the dark, connected the crushed that their continuance successful their posts volition hamper the behaviour of escaped and just elections.
It is existent that the Court has held that Article 324 has plenary powers to guarantee escaped and just election. But the Court has ne'er dealt with the transportation of the seniormost officers successful States by the ECI, taking the State governments by astonishment and resulting successful a paralysis of the administration, successful the workout of its plenary powers nether Article 324. Apart from that, the Court has itself clarified that if the tract is occupied by the law, the ECI needs to obey that law. It whitethorn beryllium argued that the instrumentality mentioned by the Court indispensable beryllium related to, oregon successful transportation with, the election. It whitethorn besides beryllium argued that the All India Services Act oregon its rules are not laws relating to elections, but that is simply a precise narrow, method view.
The important constituent is that the ECI is not empowered to bypass a instrumentality made by Parliament dealing with the transfers and postings of each India Service officers, and cannot transportation specified officers astatine volition implicit the heads of the State government. The underlying presumption successful specified transfers is that those officers volition not let the ECI to behaviour elections successful a escaped and just manner.
On ‘unchecked power’
The ECI has a arrogant past of conducting elections successful the state since 1951-52. It has ever depended connected State authorities officials to execute this task arsenic the ECI does not person immoderate machinery of its ain to undertake specified a gigantic exercise. The ECI, by branding them arsenic men lacking integrity and removing them from their posts connected the eve of an predetermination is simply a caller inclination that volition astir surely demoralise civilian servants successful the country. It is besides not wide nether what process the ECI has reached the decision that these officers are biased and unsuitable for conducting escaped and just elections. Article 324 does not springiness unfettered powers to the ECI. The Court, which granted plenary powers to the ECI, had besides said this successful Mohinder Singh Gill — “No 1 is an imperium successful imperio successful our law order. It is tenable to clasp that the Commissioner cannot defy the instrumentality equipped by Article 324. Likewise, his functions are taxable to the norms of fairness and helium cannot enactment arbitrarily. Unchecked powerfulness is alien to our system.”
These words from the highest tribunal of the onshore are large and wide enough.
P.D.T. Achary is erstwhile Secretary General, Lok Sabha
