The Constituent Assembly, established in 1946, provided a body of indirectly elected representatives responsible for drafting the Indian Constitution. Until then the major constitutional laws governing India were still enacted by the British Parliament. The inaugural meeting of the Assembly took place on the 9th of December 1946 which then proceeded to draft a written constitution that was adopted on 26th November 1949. The debate surrounding electoral administration (Article 289 of the Draft Constitution) took place between the 15th and 16th of June 1949 and revolved around four broad areas of concern: the composition of the Commission, degree of autonomy that would be assigned to the institution, the functional mandate of the institution and its place within the larger political system.
As there was no precedent for an independent electoral authority under the earlier Government of India Act 1935, the reasoning behind the creation of the institution was challenged by members of the Assembly. The preponderance of the Indian National Congress (INC) was a cause of concern for many of the members of the Assembly and there was a movement towards ensuring some form of safeguards for constitutional procedures with regard to elections.
An examination of the Proceedings reveals that legislators were extremely aware of the need for free and fair electoral processes, once the Constitution came into force. The need to overcome the legacy of flawed electoral rules, the problem of separate electorates and the exclusion from voting of more than 80% of the population under colonial rule were also visible in the statements of the legislators.
In fact, the problem of tampering with electoral processes in the provinces was such that the original draft Constitution had envisaged separate election commissions for supervising elections to the central and provincial legislatures. However, the President of the Drafting Committee (Dr. B.R. Ambedkar) introduced an amendment in Article 289 (currently Article 324 of the Indian Constitution) that envisaged only a single commission for the superintendence of elections for both the centre and the provincial legislatures. In outlining the need for a central election commission, Dr. Ambedkar expressed his view on the risks of the misuse of power by the provincial governments:
There are what may be called original inhabitants, so to say, the native people of a particular province. Along with them, there are other people residing there, who are racially, linguistically or culturally different from the dominant people who are the occupants of that particular Province. It has been brought to the notice both of the Drafting Committee as well as of the Central Government that in these provinces the executive Government is instructing or managing things in such a manner that those people who do not belong to them either racially, culturally or linguistically, are being excluded from being brought on the electoral rolls. The House will realize that franchise is a most fundamental thing in a democracy. No person who is entitled to be brought into the electoral rolls on the grounds which we have already mentioned in our Constitution, namely, an adult of 21 years of age, should be excluded merely as a result of the prejudice of a local Government, or the whim of an officer. That would cut at every root of democratic Government. In order, therefore, to prevent injustice being done by provincial Governments to people other than those who belong to the province racially, linguistically and culturally, it is felt desirable to depart from the original proposal of having a separate Election Commission for each province under the guidance of the Governor and the local Government (Lok Sabha Secretariat 2003, 905-906).
Echoing a similar logic on the necessity of protection of the franchise and insulation from localized interference in electoral processes, Naziruddin Ahmad (representing the West Bengal-Muslim constituency) in his expression of support for the creation of the ECI:
At the beginning when I came to the Assembly for the first time, I thought that the Provinces should be made strong and the Centre to that extent must yield. But after a considerable amount of experience and on prolonged consideration what is happening in the Provinces and in the States, I am now of the opinion that for many years to come the Centre must take charge of all important matters affecting the general wellbeing of the country and encroach on the Provincial field. Election is a most important item in a democratic set-up and it is very necessary that it should be controlled and supervised by a very competent, independent, and impartial body. The way in which some of the provinces are proceeding shows that the provinces are rent by party factions and it will always be the desire of the party, or the faction in power for the time being, to appoint election tribunals and officers of their own choice with a view to control or manipulate the elections. The result will be that election tribunals and officers will not be free from corruption and partiality. It is for this reason that I welcome the move by the Centre to control elections, so that thereby the impartiality of and efficiency of the election machine could be ensured (Election Commission of India 2006, 31).
The Constituent Assembly treated electoral independence and the protection of elections from executive interference as matters of fundamental constitutional importance. These were eventually placed the in a separate part of the Constitution (Part XV) rather than in the chapter on Fundamental Rights. This institutional choice provided the constitutional foundation for an independent Election Commission and for the administration of the electoral process, including the franchise. The precise legal status of the right to vote, however, remained the subject of subsequent judicial debate.
One possible source for the creation of the Commission was a degree of international influence at that time. The Proceedings acknowledge that there were influences from the Canadian Dominion Elections Act of 1920 (Ward 1949). The Act of 1920 had established an independent office of the Chief Electoral Officer. Once the idea of establishing an impartial agency was incorporated into the draft constitution, alternative institutional configurations were also considered (such as appointing ad hoc commissions prior to elections or making it a multimember commission). It was however decided by the Drafting Committee that a permanent office of the CEC, with a skeletal staff to assist in election work would be the most suitable. Article 289 that described the functions of the future ECI, the position of the Chief Election Commissioner relative to the other officers and the issue of staffing and is reproduced in the footnote below because of its centrality to the discussion. There were two major points of contention that emerged in the passage of the Article.
First, the most serious apprehensions focused on the appointment of the Chief Election Commissioner (CEC) and the potential influence of the Executive. The second area of alarm was that certain legislators felt the creation of the ECI would impinge on the powers of the provinces relative to the federal government, with the powers of electoral supervision being transferred to a federal agency. Describing the uniqueness of the institutional position of the future ECI, K.M. Munshi stated:
We must remember one thing that after all an election department is not like a judiciary, a quasi-independent organ of Government. It is the duty and the function of the Government of the day to hold the elections. The huge electorates which we are putting up now, the voting list which will run into several crores -all these must necessarily require a large army of election officers of clerks, of persons to control the booths and the all the rest of them. Now all this army cannot be set up as machinery independent of Government. It can only be provided by the central government, by the Provincial Government or by the local authorities as now.
Foreseeing the underlying contestations of today’s contemporary debates around the ECI, he further states:
It is not possible nor advisable to have a kingdom within a kingdom, so that the election matters could be left to an entirely independent organ of the Government. A machinery, so independent, cannot be allowed to sit as a kind of Super-Government to decide which Government shall come into power. There will be great political danger if the Election Tribunal becomes such a political power in the country (Lok Sabha Secretariat 2003, 924-925).
As to the other concern, H.V. Pataskar stated that the 1935 Government of India Act left the organizing of elections to the provinces although, the power to administer elections was the responsibility of the Governor-General (Lok Sabha Secretariat 2003, 916). The argument therefore went that the provinces had built up sufficient experience in administering elections and there was no requirement for a new federal agency. This issue was of special concern for provinces that were newly integrated into the Union (the former princely states) as borne out by the statements of the representative of the state of Travancore: “If this section is to be accepted, we are to believe that thereafter the provincial election will be under the perpetual tutelage of the Centre. That means, Sir, that the integrity of the provincial people is questioned.” (Comments of Annie Mascarene: Constituent Assembly Debates).
Despite the attempt to create a central constitutional authority to supervise electoral processes, the amendment passed by the Constituent Assembly could be seen as a compromise between institutional autonomy, central coordination, provincial autonomy and the practical dependence of electoral administration on government machinery. There were two issues that were not fully resolved in Article 289. First the question was left open as to whether it would be a multimember commission. Second, in terms of staffing only a small staff was assigned to the secretariat of the ECI, with provincial governments being assigned the responsibility for supplying the official machinery for election work on a temporary basis. Interestingly, certain legislators held the view that an impartial agency such as the ECI would actually work closely with the executive government to ensure smooth elections.
In addition, the Assembly passed two amendments that ensured central and state legislatures would be the major sources of electoral law. Thus Article 290 (now Article 327) defined the legislative role of parliament in the following manner:
Parliament may from time to time by law make provisions with respect to all matters relating to, or in connection with elections to either House of Parliament or to the House or either House of the Legislature of a State, including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses and the delimitation of constituencies (Election Commission of India 2006, 46-47).
For the State legislatures Article 291 (now Article 328) stated:
Subject to the provisions of this Constitution and in so far as the provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provisions with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including matters necessary for securing the due constitution of such House or Houses” (Election Commission of India 2006, 47).
In retrospect, the ECI can be said to have been formed at a time of great urgency. The crisis of Partition, the large-scale displacement of populations across national boundaries and the task of national reconstruction formed the backdrop of the first general elections of 1951-52. Keeping in mind the decision of the Assembly to establish universal adult franchise and abolish separate electorates, we find that the delimitation of constituencies and the registration of voters were very complex exercises. These elections were critical in generating certain norms and practices, especially pertaining to voter inclusion which were then carried over into the functioning of the ECI in the post-1952 era.
Samrat Sinha
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