Election Commission of India

The Election Commission of India was designed to solve one problem — how a poor, largely illiterate and deeply unequal society could hold elections that losers would accept — and it solved that problem more completely than almost anyone expected. The problems that have replaced it are different in kind: money, criminality, information, and the terms on which the referee is itself appointed. The distance between what the Commission was built to do and what it is now asked to do is the substance of every serious argument about it.

Why the Framers Built a Central Election Commission

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• The Constituent Assembly treated the election machinery as a question of survival rather than administration, and settled it deliberately against the provincial governments of the day.
  • B. R. Ambedkar told the Assembly that provincial governments were “instructing or managing things” so as to keep particular groups off the electoral rolls, and that this was reason enough to lift the whole apparatus out of their hands.
  • The Assembly therefore rejected the alternative of state-level election bodies and created a single all-India Commission covering both Union and state elections — an unusual centralising choice in a Constitution otherwise careful to divide.
  • There was no foreign model to copy. For the Supreme Court, the Public Service Commissions and the audit office the framers borrowed from colonial statutes and other constitutions; for an election commission of this kind no existing precedent was available.

“The election machinery should be outside the control of the executive Government.” — B. R. Ambedkar

• The debate that followed was almost entirely about appointment, and it anticipated the controversy that dominates the institution today.
  • H. N. Kunzru put the danger in its sharpest form: “If the electoral machinery is defective or is not efficient or is worked by people whose integrity cannot be depended upon, democracy will be poisoned at the source.”
  • Kunzru also noted the mechanism by which the danger would arrive — the Chief Election Commissioner would be appointed on the Prime Minister’s advice, and if a party man were proposed the President would have no option but to accept.
  • Shibban Lal Saksena moved that appointments require parliamentary approval by a two-thirds majority, precisely to remove the choice from a single Prime Minister.
  • K. M. Munshi argued the other way: elections need the state’s machinery, so the Commission cannot be wholly detached from the government that supplies it.
• Ambedkar’s answer was a deferral, and the deferral is still with us. He conceded that the draft “does not contain anything to provide against nomination of an unfit person”, and inserted the words “subject to the provisions of any law made in that behalf by Parliament” — leaving the safeguard to a future statute.
  • Parliament made no such law for seventy-three years. The first statute on the subject, in 2023, was passed only after the Supreme Court had forced the issue.
  • The gap between the framers’ anxiety and the framers’ remedy is the original design flaw of the institution, and every appointment controversy since has grown in it.
• The Commission was constituted on 25 January 1950, a day before the Constitution came into force, and conducted the first general election of 1951-52 across an electorate of about 173 million, over 85% of whom could not read the names on a ballot paper.
  • The response was the party symbol, allotted and protected by the Commission — an administrative device that made universal adult franchise operable in conditions where the standard theory said it could not be.

Article 324 and the Legal Architecture

The reservoir of power

• Article 324 vests the superintendence, direction and control of the preparation of electoral rolls and the conduct of all elections to Parliament, the state legislatures, and the offices of President and Vice-President in the Election Commission.
  • The words are deliberately open. They confer no list of specific powers, and the courts have read that openness as a grant rather than a gap.
• Mohinder Singh Gill v. Chief Election Commissioner (1978) is the foundational reading: Article 324 is a “reservoir of power” on which the Commission may draw where the statute is silent.
  • The Commission may act in situations the law does not cover — countermanding a poll, ordering a repoll, postponing an election — because the constitutional duty to secure a free election cannot be defeated by a legislative omission.
  • The power is not unlimited: it is subject to the rules of natural justice, so orders with civil consequences for a candidate require a hearing, and it cannot override an existing statutory provision.
• A. C. Jose v. Sivan Pillai (1984) marked the outer boundary from the other direction, holding that the Commission could not introduce voting machines on its own authority where the law prescribed ballot papers.
  • Article 324 fills silences; it does not displace an express statutory scheme. Parliament responded by inserting Section 61A into the Representation of the People Act, taking effect in 1989, which expressly authorised voting machines.
• PUCL v. Union of India (2003) confirmed the wider reading in the disclosure context, treating Article 324 as authority for the Commission to require information from candidates that no statute demanded.
  • Taken together these cases explain how a two-sentence article became the base of a regulator with rule-making reach: the Commission expanded by occupying residuary space and having courts ratify it.

The statutory frame

• The Representation of the People Act, 1950 governs the allocation of seats, delimitation machinery and the preparation of electoral rolls — who counts as an elector and how the register is made.
• The Representation of the People Act, 1951 governs the conduct of elections, qualifications and disqualifications, corrupt practices, electoral offences and election petitions — the operative code.
• The Election Symbols (Reservation and Allotment) Order, 1968 governs recognition of parties and allotment of symbols, including disputes when a party splits.
• Section 29A of the 1951 Act governs registration of political parties, a regime enacted in 1989 that for the first time gave the Commission a register and a set of conditions attached to it.

What the Commission does not control

• Local body elections are not the Election Commission’s. Panchayat elections belong to State Election Commissions under Article 243K and municipal elections under Article 243ZA, each appointed by the Governor.
  • In Kishan Singh Tomar v. Municipal Corporation of Ahmedabad (2006) the Supreme Court held that a State Election Commission enjoys, within its sphere, the same status and powers as the Election Commission of India, and that state governments must provide the staff it requires.
  • In practice they are far weaker — dependent on state governments for funding and personnel, and repeatedly implicated in postponed local elections.
• Delimitation is not the Commission’s either. Constituency boundaries are redrawn under Article 82 by a separate Delimitation Commission constituted by Parliament under a Delimitation Commission Act, though the Chief Election Commissioner sits on it ex officio.
• Election disputes are not the Commission’s. Once a result is declared a challenge lies only by election petition to the High Court under Part VI of the 1951 Act: the Commission conducts the election, it does not adjudicate the outcome.

Composition, Tenure and the Removal Asymmetry

• Article 324 leaves the size of the Commission to the President, which produced four decades of instability in a body whose whole value is predictability.
  • From 1950 to 1989 it was a single-member body — one Chief Election Commissioner and nothing else.
  • In October 1989, weeks before a general election, two Election Commissioners were appointed. The successor government abolished those posts in January 1990, and the Supreme Court in S. S. Dhanoa v. Union of India (1991) upheld the abolition while noting that the Chief Election Commissioner is not superior in kind to a colleague.
  • The Commission was made multi-member again in October 1993, and has remained so. The trigger was political: the government of the day appointed two Commissioners to dilute the authority of T. N. Seshan.
• T. N. Seshan v. Union of India (1995) settled the internal constitution of the body and is the more important case.
  • The Court upheld the multi-member structure, held that the Chief Election Commissioner is not the superior of the other Commissioners but a chairman among equals, and directed that the Commission transact business by majority where consensus fails.
  • It also affirmed that free and fair elections are part of the basic structure of the Constitution — the doctrinal peg on which every later challenge to electoral law hangs.
• The removal provisions are deliberately unequal, and the inequality is the single most cited structural defect.

• The asymmetry inverts the logic of a collegial body. A Commissioner who dissents from the Chief Election Commissioner is protected only by the person he is dissenting from.
  • The Goswami Committee (1990) and the Law Commission’s 255th Report (2015) both recommended equal removal protection for all three. Neither recommendation has been implemented.
  • Justice Ajay Rastogi, in a separate opinion in the 2023 appointment case, made the same point: the protection available to the Chief Election Commissioner should extend to the others, or the collegiality is nominal.
• The incumbents as of 2026 are Chief Election Commissioner Gyanesh Kumar, who took office in February 2025, with Election Commissioners Sukhbir Singh Sandhu, appointed in March 2024, and Vivek Joshi, appointed in February 2025.
  • All three are former civil servants, which is now a statutory requirement rather than a convention — a change discussed below.

The Appointment Controversy

The position before 2023

• Until 2023 the Chief Election Commissioner and Election Commissioners were appointed by the President on the advice of the Council of Ministers — which means, in substance, by the Prime Minister of the day, with no statute, no committee and no published criteria.
• The Election Commission (Conditions of Service and Transaction of Business) Act, 1991 regulated salary, tenure and business, but was silent on selection. The framers’ promised law had been written for everything except the thing that mattered.
• A seniority convention grew up by which the senior-most Election Commissioner was elevated, supplying predictability without independence — the government still chose who entered the queue and when.

Anoop Baranwal and the Court’s intervention

• Anoop Baranwal v. Union of India, decided on 2 March 2023 by a five-judge Constitution Bench led by Justice K. M. Joseph, held that unilateral executive appointment left the Commission structurally vulnerable.
  • The Court’s central observation was blunt: “A pliable Election Commission … who obliges the powers that be … offers the surest gateway to acquisition and retention of power.”
  • It directed that, until Parliament made a law, appointments be made on the advice of a committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India.
  • The Court also appealed — without directing — for a permanent independent secretariat for the Commission and for its expenditure to be charged on the Consolidated Fund of India, both long-standing demands.
• The judgment used the filling-in power the Court has exercised before in the absence of legislation, and carried an explicit invitation to Parliament to replace the arrangement. Parliament accepted the invitation and reversed the design.

The 2023 Act

• The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 received assent on 29 December 2023 and replaced the 1991 Act.

• The change of one member changes the arithmetic completely. A three-member committee with two government nominees produces a guaranteed government majority, which is exactly the defect the Court identified.
• Several further features of the Act have drawn objection independently of the committee’s composition.
  • A recommendation is valid despite a vacancy in the selection committee — and vacancies in the office of Leader of the Opposition are common, so the clause can leave the government’s two members deciding alone.
  • Tying salary to the Cabinet Secretary rather than a Supreme Court judge matters because a judge’s salary is fixed by Parliament while the Cabinet Secretary’s is fixed by the government, giving the executive a lever over the regulator’s emoluments.
  • Restricting eligibility to persons of Secretary rank entrenches a civil service monopoly over a body that performs quasi-judicial functions, and forecloses jurists, academics and retired judges.
  • Section 15 extends protection from legal proceedings for acts done in official capacity, which critics read as narrowing accountability for a body whose orders can decide an election.

The two sides of the argument

• The timing of the first appointments under the Act sharpened the criticism: two Commissioners were selected in March 2024, days before the general election was announced, with the Leader of the Opposition publicly dissenting from the shortlisting.
• The challenge remains undecided.Jaya Thakur v. Union of India, with the Association for Democratic Reforms as co-petitioner, argues that the Act defeats the ratio of Anoop Baranwal.
  • Interim stay was refused in January 2024 and again in March 2024, the Court declining to disturb appointments already made.
  • The matter was heard by a Division Bench of Justices Dipankar Datta and S. C. Sharma on 6 May 2026.
  • On 30 July 2026 the Court reserved its order on whether to refer the case to a larger bench. The Union argued that Article 324 and Parliament’s competence raise substantial questions warranting a Constitution Bench; the petitioners argued that a Constitution Bench has already settled the point and that referral would only delay.
  • No ruling exists on the validity of the Act. The live question in 2026 is not whether the law survives but which bench will decide it.
• L. K. Advani had proposed three safeguards that anticipate much of the present debate: the Commission should be a multi-member body; retired Secretaries to the Government of India should not be appointed to it; and retired members should not be offered any subsequent appointment.
  • The first has been achieved; the second has been statutorily reversed by the 2023 Act’s eligibility clause; the third remains unaddressed, and post-retirement appointments of former Commissioners continue to attract the criticism that they create an incentive structure during tenure.

Independence is not a quality of individuals but of arrangements, and an arrangement that guarantees the appointing government a majority cannot generate it by good luck.

The Three Functions: Administrative, Advisory, Quasi-Judicial

• The Commission’s work divides into three kinds of function, and the division matters because each attracts a different standard of review and a different criticism.

• The rolls are the foundation and the least glamorous part of the work. Every other function depends on the register being right.
  • Summary revision is the routine annual exercise, in which claims and objections are invited against an existing roll.
  • Intensive revision rebuilds the roll from house-to-house enumeration rather than correcting it at the margins — the distinction that became the central controversy of 2025-26.
• Registration of parties was systematised only in 1989 by Section 29A, and the register has outgrown any capacity to police it.
  • There are roughly 2,790 registered parties, of which six are recognised national parties and about sixty-one recognised state parties; the bulk are registered unrecognised parties, many of which have never contested an election.
  • The Commission cannot deregister a party. In Indian National Congress v. Institute of Social Welfare (2002) the Supreme Court held that the Act confers no such power, leaving only three exceptions — registration obtained by fraud, a party declared unlawful by the central government, and refusal to abide by the Constitution.
  • It can delist dormant parties and withdraw recognition from a recognised one, and has delisted hundreds since 2024. The gap matters because parties that never contest are used as conduits for tax-exempt donations, turning a registration formality into a laundering vulnerability.
• Symbol allotment is where the Commission acts most visibly as a court. When a recognised party splits, it decides under Paragraph 15 of the 1968 Symbols Order which faction is the party — a determination that settles the political fate of both and is routinely litigated.
• The 44th Amendment (1978) added a function its critics regard as a trap: the President may seek the Commission’s opinion on whether elections can be held in a state under President’s Rule beyond six months — an intrinsically political judgement placed in a technical body’s hands.

The Model Code of Conduct

• The Model Code of Conduct is the Commission’s most distinctive instrument and its most instructive: a set of rules with no statutory force that has nonetheless shaped the behaviour of every party in the country.
  • It originated in a code drawn up by the Kerala administration for the 1960 assembly election and was circulated by the Commission to recognised parties from 1962.
  • The part addressed to the party in power — restraining use of official machinery, official media and public funds — was added in 1979, and gives the Code its equalising purpose.
  • Its transformation from an observed courtesy into an enforced regime dates from 1991, when violations began to be treated as matters for public censure and administrative action.
• The Code comes into force the moment the election schedule is announced and lapses when the process is complete. Its principal restrictions:
  • No new schemes, grants or projects may be announced and no foundation stones laid once the schedule is published.
  • No transfers or fresh appointments of officials connected with the election; where a transfer is necessary the Commission itself directs it.
  • No use of government machinery, official vehicles, official media or public funds for campaigning.
  • No appeal to caste or communal sentiment, no hate speech, and no personal attacks on an opponent’s private life.
  • No criticism on unverified allegations, no bribery or intimidation, and no meetings or processions without prior permission.
  • Manifestos may not promise anything repugnant to the Constitution, and their release is regulated in the silence period.
• The Kerala High Court supplied the limiting principle: the object of the Code is not to stop all governmental activity, but only actions that may directly influence a section of electors.
• Whether the Code should be given legal force is a genuinely two-sided argument, and both sides rest on the same observation — that it works by moral authority.

• A related proposal is to arm the Commission with contempt powers so that defiance of its orders is punishable directly.
  • The objection is that even the judiciary uses contempt sparingly, and transplanting a power the courts treat as a last resort into an executive body would be a retrograde step rather than a strengthening one.
• The deeper criticism concerns asymmetry of enforcement: the Commission has been accused of responding slowly to violations by the party in power, most visibly to hate speech during campaigns, while acting briskly against smaller parties — and it cannot disqualify a candidate for a malpractice short of a court’s finding of a corrupt practice.

The Model Code shows the Commission at its strongest and at its most exposed: it works entirely on authority, and authority is exactly what a contested appointment process erodes.

Money in Elections

The ceilings and what they do not cover

• The Commission prescribes a ceiling on candidate expenditure under the Conduct of Elections Rules; the current limits were set in January 2022.
  • Rs 95 lakh per Lok Sabha constituency in the larger states and Rs 75 lakh in the smaller states and Union Territories.
  • Rs 40 lakh per assembly constituency in the larger states and Rs 28 lakh in the smaller ones.
  • Every candidate must file an account of election expenses within 30 days of the result; failure is itself a ground for disqualification for up to three years under Section 10A. The ceiling in the first general election was Rs 25,000 per Lok Sabha seat.
  • The Commission also cut the campaign period from 21 days to 14 days for Lok Sabha and assembly elections, an administrative measure aimed squarely at trimming the cost of contesting.
• The ceiling binds almost nobody, because the largest categories of spending fall outside it.
  • Explanation 1 to Section 77 of the 1951 Act excludes expenditure by the political party and by other persons from the candidate’s account.
  • The exclusion was inserted to reverse Kanwar Lal Gupta v. Amar Nath Chawla (1975), in which the Supreme Court had held that party spending on a candidate’s behalf must be counted, precisely because the ceiling would otherwise be meaningless.
  • The reversal of that case is the central weakness of the entire regime: a party may spend without limit, and the candidate’s ceiling regulates only the visible tip.
  • The evidence is in the Commission’s own returns — winning candidates in 2024 declared average spending of roughly Rs 57 lakh against a Rs 95 lakh limit, in an election independent estimates put at around Rs 1.35 lakh crore overall, by common assessment the most expensive election ever held anywhere.
• The consequences are structural rather than merely ethical: unregulated money raises the entry barrier for new entrants, creates a standing risk of elite and corporate capture of policy as well as of elections, and makes candidates dependent on the party that controls the spending that actually matters, weakening internal democracy from below.

Anonymity, disclosure and electoral bonds

• Section 29C of the 1951 Act requires parties to report contributions above twenty thousand rupees to the Commission as a condition of income tax exemption.
  • The threshold is easily engineered around: unlimited sums may be received as aggregated small donations each recorded below the line, with no donor identified.
  • Over the past decade, analysis by the Association for Democratic Reforms has consistently found that more than 70% of party income came from sources that were never identified.
• The electoral bond scheme, introduced in 2018, made anonymity a legal design rather than a loophole.
  • Bonds were bearer instruments purchased from a designated bank and encashed by a party within fifteen days; the donor’s identity was disclosed to the bank and to nobody else.
  • The stated objectives were to reduce cash and black money in political funding, to protect donors from retaliation by parties they did not fund, and to improve transparency by routing money through the banking system.
  • The objections were that the scheme sat outside the Right to Information Act, that the State Bank of India — a government-owned bank — necessarily knew who had funded whom, so the anonymity was asymmetric in the government’s favour, and that the removal of disclosure requirements defeated the voter’s right to know.
• In Association for Democratic Reforms v. Union of India, decided on 15 February 2024, a Constitution Bench struck the scheme down.
  • The Court held that donor anonymity violated the right to information under Article 19(1)(a), which extends to information about the funding of political parties because it bears on the voter’s choice.
  • It held the accompanying Companies Act amendment permitting unlimited corporate donation to be manifestly arbitrary and violative of Article 14, treating companies and individuals as if the influence of each were equivalent.
  • It directed the State Bank of India to disclose all past purchases and encashments to the Election Commission, and the Commission to publish them.
  • The disclosed data showed bonds worth about Rs 16,518 crore sold between March 2018 and January 2024.
    • The Bharatiya Janata Party encashed roughly Rs 6,566 crore, about 55% of the total; the Indian National Congress about Rs 1,123 crore and the All India Trinamool Congress about Rs 1,092 crore.
    • The distribution was heavily skewed toward the party in office, which is the empirical answer to the claim that anonymity protected donors rather than incumbents.

Corporate donations

• The Companies Act, 2013 originally capped a company’s political contributions at 7.5% of its average net profits over the three preceding financial years, and required the recipient to be named in the accounts.
• The Finance Act, 2017 deleted the cap and the disclosure requirement, allowing a company to donate any sum to any party without recording which one — and, with the profit link removed, allowing loss-making and newly incorporated shell companies to donate.
• The February 2024 judgment restored the position, striking down the amendment and reviving the 7.5% ceiling and the disclosure obligation.
• The structural problem survives the judgment. Nothing prevents a return to routed cash, and electoral trusts — the surviving legal intermediary — still stand between the corporate donor and the party, disclosing the trust’s donors but blurring which donation funded which party.

What is still unfixed

• Political parties remain outside the Right to Information Act. The Central Information Commission ruled in 2013 that six national parties are public authorities, given their substantial indirect state funding through tax exemptions and free airtime. No party has complied and no amendment has followed.
• There is no ceiling on party expenditure at all, which every reform body since the Goswami Committee has recommended and no Parliament has enacted.
• Foreign funding has been progressively liberalised: amendments to the Foreign Contribution (Regulation) Act in 2016 and 2018, given retrospective effect, redefined a foreign company’s Indian subsidiary so as to permit donations previously unlawful — raising a question, distinct from corruption, about foreign influence over the policy of an elected government.

Every judicial victory on election finance has been a victory about disclosure, and disclosure regulates knowledge of money rather than the quantity of it.

Criminalisation of Politics

• The statutory position is the source of the whole difficulty: disqualification under Section 8 of the Representation of the People Act follows conviction, not accusation.
  • Section 8(1) and 8(2) disqualify on conviction for specified offences regardless of sentence; Section 8(3) disqualifies anyone sentenced to imprisonment of two years or more, for the period of imprisonment and a further six years.
  • Because trials against legislators routinely run a decade or more, a candidate facing the gravest charges is fully eligible to contest, win and legislate.
• The disclosure regime was built by litigation, not legislation. The Association for Democratic Reforms filed a public interest petition in 1999 seeking disclosure of candidates’ antecedents, and the resulting line of cases transformed what voters know.

• The affidavit is enforced at nomination: incomplete disclosure entitles the Returning Officer to reject the nomination, and a false affidavit attracts penal consequences, though prosecutions are rare.
• The trend the disclosure regime revealed is that it did not reverse.

• In the 2024 Lok Sabha, twenty-seven winners declared prior convictions, and 46% is the highest figure ever recorded — disclosure has made the phenomenon visible without making it costly.
• Transparency has not deterred because criminal antecedents are an electoral asset, not a liability: a candidate with declared cases consistently shows a materially higher probability of winning than one without.
  • Milan Vaishnav argues that parties select such candidates because they can self-finance in a system with no public funding, and because where the state’s protective capacity is weak a reputation for force reads to voters as credibility in delivering protection and patronage.
  • On this account criminalisation is a symptom of state weakness and unregulated money, which is why rules aimed at voter information were always likely to under-perform.
• The costs run wider than the composition of legislatures: lawbreakers as lawmakers weakens the will to legislate against corruption, produces the politicisation of crime as investigative agencies become instruments of party competition, and lowers the morale of a civil service taking instructions from those it might otherwise prosecute.
• The unimplemented remedy is disqualification at the stage of charge. The Law Commission’s 244th Report (2014) recommended disqualification on the framing of charges for offences carrying five years or more, where the charge was framed at least a year before the election.
  • The objection is serious: framing precedes any finding of guilt, and such a rule creates an incentive to weaponise prosecution against opponents, particularly where police forces answer to state governments.
  • The Commission has proposed a narrower version — charges framed six months before the election — and Parliament has enacted neither.
• Special courts for cases against sitting legislators were directed from 2017 and constituted from 2018 under continuing judicial monitoring, but throughput has been uneven: cases are disposed while new ones accumulate, and the promise of a one-year trial has not been met at scale.

Paid News, Fake News and the Information Environment

• Paid news is defined by the Press Council of India as news or analysis appearing in the media in exchange for cash or kind, presented as editorial content rather than as advertising.
  • It corrupts elections at two levels: it manipulates voter perception by disguising an advertisement as a report, and it conceals expenditure by moving campaign spending off the candidate’s return into a commercial arrangement with a publisher.
• Paid news is not an electoral offence under the Representation of the People Act. It is dealt with indirectly, as suppressed expenditure in the candidate’s account, which can ground disqualification under Section 10A.
  • Both the Election Commission and the Law Commission have recommended making it a substantive electoral offence carrying imprisonment of two years, and amending Section 8 of the 1951 Act so that conviction disqualifies.
  • Parliament has not acted, so a practice both regulators regard as an assault on electoral integrity is punished, if at all, as an accounting irregularity.
• The enforcement machinery the Commission has built is administrative rather than legal.
  • Media Certification and Monitoring Committees at district and state level pre-certify political advertising and flag suspected paid news, with notice to the candidate and an opportunity to reply.
  • District Media Observers, appointed with the Press Council, scan local publications for the tell-tale signs — identical copy across mastheads, undated praise, uniform layout.
  • Media organisations are expected to carry a declaration that no content has been paid for, and the Commission has flagged more than two hundred instances over the past decade, plainly a fraction of the practice.
• Fake news moved the problem from a regulated industry to an unregulated one. Deliberate misreporting circulated through social platforms is faster, cheaper, harder to attribute and outside the Press Council’s jurisdiction.
  • The Commission appoints Social Media Observers and works with platforms under a Voluntary Code of Ethics adopted in 2019, under which platforms undertake to act on flagged content within set hours during the silence period.
  • The arrangement is voluntary, not statutory, so the Commission’s leverage is persuasion — and the arrival of synthetic audio and video has outpaced the takedown model entirely.
  • Section 126 prohibits campaign material in the 48-hour silence period, but was drafted for cinema halls and television; the Commission has recommended extending it expressly to print and to all electronic media.

Opinion Polls and Exit Polls

• The distinction matters legally: an opinion poll is a pre-election survey of voter preference, while an exit poll is conducted as voters leave the booth and predicts the result before counting.
• The Commission first sought to restrict them in 1997, barring publication of poll results during the election period, and returned to the question in 2004 after consulting recognised parties, most of which supported a ban.
  • The complaint was that many surveys were methodologically indefensible and some were commissioned to create a bandwagon, since in a multi-phase election early projections can influence later voting.
• The attempt to extend the restriction to opinion polls met a constitutional objection. Media organisations, including The Hindu, petitioned the Supreme Court arguing that a blanket ban on publishing survey results violates freedom of speech and expression under Article 19(1)(a), of which press freedom is part.
  • The petition set the terms that still govern: a restriction must be reasonable under Article 19(2), and prohibiting publication of accurate information about public opinion is hard to justify on that footing.
• The settlement is partial and asymmetric.
  • Section 126A, inserted in 2009, prohibits the conduct, publication and dissemination of exit polls from the commencement of polling on the first day to half an hour after the close of polling on the last day, on pain of imprisonment up to two years, or fine, or both.
  • Opinion polls have no equivalent statutory prohibition. The Commission has recommended a ban from notification until polling ends; Parliament has not enacted it.
• In place of prohibition the Commission, with the Press Council, requires any published poll to carry a note on methodology — the sample size, the questionnaire administered, the demographic composition of respondents and the representativeness of the sample — so that a reader given the method can judge the finding for herself.
• Comparative practice cuts both ways. Roughly sixteen European countries restrict publication of opinion polls in the immediate pre-election period, for spans from two days to a month, which shows such limits are not inherently incompatible with democratic speech norms.
  • The counter is that with staggered multi-phase polling running six weeks, a comparable Indian ban would silence discussion far longer than anywhere in Europe.
  • Any restriction would therefore need a negotiated consensus with the press and the parties rather than a unilateral order, which is why the question has stayed unsettled for three decades.

Electronic Voting Machines and VVPAT

• The electronic voting machine was the Commission’s most consequential technical intervention, and it began as a state experiment.
  • It was first used experimentally in the Parur constituency of Kerala in the 1982 assembly election.
  • The Supreme Court in A. C. Jose v. Sivan Pillai (1984) set aside the result, holding that the Commission could not substitute a machine for the ballot paper the rules prescribed.
  • Parliament supplied the authority through Section 61A, effective 1989; machines were used in selected constituencies from 1998, and the 2004 general election was the first conducted entirely on EVMs.
• The machine’s design answers most of the standard objections directly.
  • It is a stand-alone device with no communication capability — no Bluetooth, radio frequency, wi-fi or internet interface — so there is no channel through which it could be addressed remotely.
  • Its chip is one-time programmable: the software is burnt in at manufacture and cannot be rewritten in the field.
  • Candidates are listed alphabetically rather than by party, and machines are allotted to constituencies and booths by randomisation before party representatives.
  • Machines are mock-polled and sealed before the poll in the presence of candidates’ agents, and stored under guard between poll and count.
• The gains are the ones that mattered most in Indian conditions. EVMs effectively ended booth capture, ballot stuffing and invalid votes, compressed counting from days to hours, and made repolls exceptional: in 2024, repolling was ordered at 40 of 10,52,664 polling stations, against 540 in 2019.
• VVPAT — the Voter Verifiable Paper Audit Trail — was introduced from 2013 after the Supreme Court in Subramanian Swamy v. Election Commission of India held a paper trail indispensable to a free and fair election, and was universalised by 2019.
  • It prints a slip showing the symbol voted for, displays it behind glass for seven seconds and drops it into a sealed box, so the voter can verify her vote without removing the record.
  • Following N. Chandrababu Naidu v. Union of India (2019), slips are counted and matched against the electronic count in five randomly selected polling stations per assembly segment.
• The demand for full verification was rejected in Association for Democratic Reforms v. Election Commission of India, decided on 26 April 2024 by Justices Sanjiv Khanna and Dipankar Datta.
  • The Court declined to order 100% VVPAT counting, declined to let the voter deposit her slip physically, and refused to contemplate a return to ballot papers, describing the machines as simple, secure and having eliminated booth capture.
  • It issued two directions: Symbol Loading Units must be sealed and stored for 45 days after the result, and a candidate placed second or third may, within seven days, request an engineer’s check of the burnt memory of up to 5% of machines, at his own cost, refunded if tampering is found.
  • Justice Datta added an observation now part of the debate — that blind distrust of an institution breeds scepticism, and that rising turnout is itself evidence of confidence.
• The serious criticism is about verifiability, not tampering. A five-machine sample per segment cannot detect a defect confined to a few units, and a system whose source code cannot be independently audited asks voters for trust in place of proof.
  • Related objections concern discrepancies between votes polled and votes counted in some constituencies, and the rule permitting destruction of certain electronic records 45 days after the poll, now itself under challenge as foreclosing verification.
  • A return to paper would nonetheless be regressive, reinstating the very malpractices machines removed. The constructive route runs through wider sampling, published audit protocols and independent technical review.

Delimitation, the Freeze and the Representation Question

• Delimitation — the redrawing of constituency boundaries and the reallocation of Lok Sabha seats among states — is carried out under Article 82 after each census by a Delimitation Commission whose orders are not justiciable. Commissions were constituted in 1952, 1963, 1973 and 2002.
• The freeze is the governing fact. The 42nd Amendment (1976) froze the allocation of seats among states on the 1971 census, to reassure states succeeding in reducing fertility that they would not lose representation for doing so.
  • The 84th Amendment (2001) extended the freeze to the first census taken after 2026, and the 87th Amendment (2002) allowed boundaries to be redrawn within states on 2001 population without altering any state’s seat count.
  • Because the next census is scheduled for 2027, it is the first that can end the freeze.
• The problem is federal, not technical. Kerala, Tamil Nadu, Andhra Pradesh, Telangana and Karnataka reduced fertility fastest and grew most slowly; strict reallocation by current population would transfer seats to Uttar Pradesh, Bihar, Madhya Pradesh and Rajasthan.
  • The grievance is that states are penalised for complying with national population policy — the same objection raised against the use of 2011 data in fiscal devolution.
  • The democratic counter is that constituency populations now differ by very large margins, and unequal constituencies violate political equality; Ambedkar’s one person, one vote, one value cuts against the freeze.
  • The options canvassed are increasing the total number of seats so no state loses in absolute terms, retaining state shares while redrawing internally, compensating through a strengthened Rajya Sabha, or extending the freeze again.
• The 106th Amendment (2023) ties a third question to the same exercise: one-third reservation for women takes effect only after a census and a delimitation.

Dual Constituencies, NOTA and the Limits of Voter Choice

• Section 33(7) of the 1951 Act, as amended in 1996, permits a candidate to contest from up to two constituencies; before 1996 there was no limit at all. A candidate who wins both must vacate one within fourteen days, triggering a by-election the state pays for.
• The objections are practical and democratic at once.
  • It negates the voice of the electorate in the seat vacated: voters chose a representative knowing she might not stay, and are then asked to vote again.
  • It imposes avoidable expenditure on the Commission and the exchequer for an entirely foreseeable vacancy.
  • It signals that the candidate treats one constituency as insurance, weakening the constituency link the system is built on.
• The Law Commission’s 255th Report (2015) and the Commission’s own proposals recommend restricting candidates to a single seat, or requiring the candidate to deposit the cost of the by-election.
  • In 2023 the Supreme Court declined to strike down Section 33(7), holding the question one of legislative policy for Parliament. The provision stands on Parliament’s silence rather than on any defence of its merits.
• NOTA was introduced on every ballot following PUCL v. Union of India (2013), which held that the right to reject is part of the freedom of expression and must carry the same secrecy as a positive vote.
  • NOTA has no consequence. A constituency where NOTA polls more votes than any candidate still elects the highest-polling candidate; there is no re-poll and no bar on the rejected candidates.
  • In 2024 NOTA received about 63.7 lakh votes, roughly 0.99% of valid votes — dissatisfaction registered without being acted on.
  • The proposals that would give it force are totally negative voting, under which a NOTA majority voids the election, and the right to recall, which is regarded as administratively impracticable at Indian scale.

The Record: What the Commission Has Actually Delivered

• The achievement is one of scale under adverse conditions, and the criticisms do not cancel it.
  • The 2024 Lok Sabha election covered 97.98 crore registered electors — roughly one-sixth of the world’s electorate — with 64.64 crore votes cast across 10,52,664 polling stations, and repolling at just 40.
  • The Commission has conducted elections in insurgency-affected districts, in Jammu and Kashmir and across the north-east, and results are accepted by losers with a consistency comparable democracies do not achieve.
• The institution changed character between 1990 and the mid-2000s, and that change is the core of any account of it.
  • Yogendra Yadav calls the period the “Third Electoral System” — the collapse of one-party dominance, the entry of the socially and economically marginal in unprecedented numbers, and a mobilisation that outran institutionalisation, producing coalition instability, anti-incumbency as the default and open violation of electoral norms.
  • In these conditions T. N. Seshan, then M. S. Gill and J. M. Lyngdoh, presided over the transition from an election-conducting body to a referee and regulatory institution — enforcing the Model Code, monitoring expenditure, issuing photo identity cards and deploying observers as routine.
  • The Commission achieved this less by acquiring powers than by dipping into the reservoir of Article 324 and appropriating residuary authority wherever the law was silent, with judicial interpretation ratifying the appropriation after the fact.
• David Gilmartin argues that the Commission’s significance lies not in administrative efficiency but in the central role it plays in balancing politics — holding a competitive field open in a society organised by community rather than by the abstract individual the ballot presumes.
  • He treats the Model Code of Conduct as the most important marker in its evolution, and notes that the Commission has become a potent force in the popular imagination and a model studied abroad.
  • His criticism is the one the Commission has never answered: it has not controlled the growing influence of money power, now the principal threat to Indian democracy’s functioning.
• Mukulika Banerjee adds the view from the booth: the polling station is a rare space in which class, gender, age and caste are procedurally suspended.
  • The secret ballot insulates the voter from the community pressure that governs the rest of her life, which is why turnout among the poor exceeds turnout among the prosperous — inverting the pattern of most democracies.
• Sunil Khilnani locates the institution’s weight in the weakness of everything around it.

Elections in India carry “the entire society’s aspirations” to the extent that, as the “sole bridge between state and society”, they have come to “stand for democracy itself.” — Sunil Khilnani

• That formulation is also a warning. Where non-electoral checks are weak, the electoral machinery carries a load it was never designed for, and any doubt about its neutrality transmits directly into doubt about the political system as a whole.

Structural Weaknesses and the Design-Versus-Practice Gap

• The Constitution is silent on the qualifications and the term of the Chief Election Commissioner and the Election Commissioners, leaving both to executive discretion until 2023 and to ordinary statute thereafter — so the safeguard can be altered by a simple majority of the government that benefits from altering it.
• The number, qualifications, term and conditions of service of Regional Commissioners are unspecified, and the office has been used only intermittently, leaving a constitutional post without a constitutional shape.
• The Commission cannot recruit or regulate its own secretariat staff. Its officers come on deputation, and the officials who actually conduct a poll — Returning Officers, District Election Officers, the police — are state government employees deemed on deputation for the election period alone, with careers that depend on the governments whose elections they administer.
  • Both Anoop Baranwal and the Commission’s own proposals have sought a permanent independent secretariat on the model of the legislative secretariats.
• Its budget is not charged on the Consolidated Fund of India. Expenditure is voted by Parliament like a ministry’s, so the financial autonomy the Constitution gives the judiciary, the Comptroller and Auditor General and the Union Public Service Commission is exactly what the electoral regulator lacks.
• The 44th Amendment’s Article 356 role places the Commission in the “vortex of politics” by requiring it to opine on whether elections can be held in a state under President’s Rule — a judgement with immediate partisan consequences.
• Its success depends on cooperation it cannot compel — on the opposition’s willingness to accept adverse rulings and on the ruling party’s implicit faith in its impartiality. Neither can be legislated, and both have eroded.
• The Commission’s internal life has repeatedly been a point of vulnerability, because a three-member body with unequal removal protection is easy to divide.
  • Seshan’s petition challenging the appointment and powers of two additional Commissioners produced the ruling that settled collective functioning — but only after a public institutional quarrel.
  • Chief Election Commissioner N. Gopalaswami’s recommendation to remove Election Commissioner Navin Chawla in 2009 was rejected by the government, demonstrating that the removal power the Constitution gives the Chief Election Commissioner is exercisable in practice only with executive consent.
  • Election Commissioner Ashok Lavasa’s dissents from clean chits given in Model Code complaints during the 2019 campaign were not recorded in the Commission’s orders; he recused himself and later left for another post.
    • The episode raised the question whether a minority view should be published, as it is in every judicial body the Commission is compared to.
• The powers the Commission conspicuously lacks define the limits of enforcement: it cannot deregister a party, cannot disqualify a candidate for an electoral malpractice without a court’s finding, and cannot punish defiance of the Model Code beyond censure or a temporary campaign ban.
• The most useful contemporary framing treats the Commission as a “fourth branch” guarantor institution, which must possess competence, independence and accountability together.
  • Its competence is not in doubt; the logistical record is the strongest evidence any Indian institution has.
  • Its independence is contested at the point of appointment, and the 2023 Act moved it in the wrong direction.
  • Its accountability is the weakest of the three: it regulates through discretionary enforcement and technical design choices that are rarely explained, seldom reviewable in time to matter, and insulated by judicial deference. Enormous power with thin accountability is fragile even when it is being exercised well.

The gap is not between a good design and a bad practice; it is between a design that assumed political forbearance and a practice in which forbearance has been withdrawn.

The Special Intensive Revision and the 2026 Judgment

• The Special Intensive Revision (SIR) is a de novo rebuilding of the electoral roll rather than a correction of it: enumeration forms are distributed house to house, and an existing elector must establish eligibility afresh rather than remain on the register until objected to.
  • The Commission ordered the first such exercise in roughly four decades in Bihar ahead of the 2025 assembly election, citing the passage of time, urbanisation, migration, duplicate entries and unremoved deaths. About 65 lakh names were left out of the Bihar draft roll.
• A second phase from late 2025 covered twelve states and Union Territories — including Tamil Nadu, Gujarat, Uttar Pradesh, West Bengal, Kerala, Rajasthan and Madhya Pradesh — and roughly 51 crore electors.
  • Draft rolls published between December 2025 and February 2026 omitted about 3.67 crore names, close to 10% of the rolls covered, with the highest proportions in Tamil Nadu (over 15%) and Gujarat (about 14.5%).
  • The Commission attributed the omissions principally to death (about 99.8 lakh), shifted residence (about 2.47 crore) and duplicate registration (about 18.6 lakh).
  • Revision of the remaining twenty-two states and Union Territories, covering roughly 40 crore electors, was scheduled through 2026.
• The exercise became the sharpest confrontation between the Commission and the opposition in its history. Allegations of “vote theft” were levelled by opposition leaders and answered by the Commission with demands for sworn declarations — an exchange without precedent between the regulator and the principal opposition party.
  • The substantive objections were that the burden of proof had been inverted onto the elector, that documents commonly held by the poor — ration cards and existing voter identity cards — were excluded from the accepted list, and that a mass revision conducted immediately before a poll leaves no time to correct errors.
• The challenge was decided on 27 May 2026 by a bench of Chief Justice Surya Kant and Justice Joymalya Bagchi, which upheld the SIR.

• The Court held the exercise neither arbitrary nor excessive given four decades of accumulated change, having earlier issued interim directions including extended objection periods and, in West Bengal, judicial oversight through the High Court.
• The criticism of the judgment is about institutional design rather than the reasoning on Article 324.
  • The Court enlarged the Commission’s plenary powers while applying a framework of trust to its technical choices, leaving the selection of admissible documents — the decision that actually determines who is removed — effectively unreviewable.
  • Because review arrives months after a revision conducted weeks before a poll, errors are corrected after the election they affected; the remedy cannot reach the harm.
  • The wider objection is the one the fourth-branch framework predicts: the ruling enlarged power without enlarging accountability, at the very moment the independence limb of the institution is under challenge in a pending case.

Simultaneous Elections

• Synchronising Lok Sabha and state assembly elections was examined by a High Level Committee constituted in 2023 under former President Ram Nath Kovind, which reported in March 2024 recommending a two-step move — Lok Sabha and assemblies together, then local body elections within a hundred days.
• The Constitution (One Hundred and Twenty-Ninth Amendment) Bill, 2024 and a companion Union Territories laws amendment bill were introduced in December 2024 and referred to a Joint Parliamentary Committee of 41 members chaired by P. P. Chaudhary, whose term has been extended repeatedly, most recently in July 2026. The earliest contemplated implementation is 2029.
• The arguments for are cost; the near-continuous operation of the Model Code, which suspends new policy announcements somewhere in India almost all year; and the repeated diversion of security forces and administrative staff.
• The arguments against are constitutional and federal.
  • It requires amending Articles 83, 85, 172, 174 and 356, and cannot answer cleanly what happens when a house falls early: either the successor serves a truncated term, weakening accountability, or President’s Rule fills the gap, weakening federalism.
  • National issues and national campaign spending would crowd out state ones, and evidence from concurrent elections suggests voters converge on the same party across both ballots.
  • It concentrates further discretionary power in a Commission whose independence is already contested, which is why the appointment question and this one are not separable.

The Reform Agenda

• The Commission’s own proposals, pressed on successive governments and largely unimplemented, are the most compact statement of what it believes it lacks.
  • Constitutional protection of removal for all three Commissioners, not the Chief alone.
  • An independent secretariat and expenditure charged on the Consolidated Fund, on the model of the legislative secretariats.
  • Disqualification on the framing of charges for offences punishable by five years or more.
  • Making paid news an electoral offence, and extending Section 126 restrictions to print media.
  • A statutory ban on opinion polls from notification to the close of polling.
  • Power to deregister parties that never contest and exist only to claim tax exemption.
  • Two years’ imprisonment for a false affidavit, conviction disqualifying.
  • A ceiling on party expenditure, and limits on the number of star campaigners.
  • Audited annual accounts and donor disclosure as conditions of tax exemption.

• The earlier reform literature converges on the same points.
  • The Tarkunde Committee (1975) and the Goswami Committee (1990) on a multi-member Commission and broad-based appointment.
  • The Vohra Committee (1993) on the criminal-political-bureaucratic nexus.
  • The National Commission to Review the Working of the Constitution (2002) on party finance and disqualification, and the Second Administrative Reforms Commission on a collegium for constitutional appointments.
• The pattern across five decades is not a shortage of recommendations but a shortage of enactments. Almost every reform that would constrain the parties has been proposed, studied, endorsed and left unlegislated; almost every reform actually enacted has moved in the opposite direction until a court intervened.

Conclusion

The Election Commission was built to make elections possible and it did that better than the theory of the time allowed for. What it was not built to do is regulate the flow of money into politics, exclude candidates who are being prosecuted, police an information environment it has no jurisdiction over, or defend its own composition against the government that appoints it — and these are now the whole of the argument about Indian elections.

• The Commission’s authority has always been borrowed rather than granted: from a broadly worded article, from courts willing to ratify its expansion, and above all from a public reputation for neutrality that no statute confers and no statute protects.
• Every current controversy — the appointment law, the Special Intensive Revision, the EVM dispute — is at bottom the same controversy, about whether that reputation still does the work it used to do.
• Reform that addresses only powers will not restore it. A broader-based appointment process, equal removal protection, an independent secretariat and a charged budget go to the conditions of trust; a ceiling on party expenditure, disclosure that reaches parties and disqualification linked to serious charges go to the substance of fairness.
  • The institution needs both, and Parliament has for fifty years supplied neither.