STATE ELECTION COMMISSIONS

The Constitution (Seventy-third Amendment)Act, 1992 and the Constitution (Seventy-Fourth Amendment) Act, 1992, setting up of State Election Commissions.

Election's Commission's letter No. 3/5/96/Jud.II Dated : 12th February, 1996 addressed to (1) The Chief Secretaries to the Govts. of all States and Union Territories, and (2) The Chief Electoral Officers of all States and Union Territories.
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Subject :- The Constitution (Seventy-third Amendment) Act, 1992 and the Constitution (Seventy-fourth Amendment) Act 1992, setting up of State Election Commissions-Regarding.

I am directed to invite your attention to the provision of the Constitution (Seventy-third Amendment) Act, 1992 and the Constitution (Seventy-fourth Amendment) Act, 1992, whereunder, the constitution of State Election Commissions and appointment of State Election Commissioners are contemplated to superintend, direct and control the preparation of the electoral rolls for, and the conduct of elections to Panchayats and Municipalities. Panchayats have been defined in Article 243(d) read with Article 243B to mean institutions, by whatever name called, of self-Government at the village, intermediate and district levels. Municipalities as defined in Article 243B(e) read with Articles 243Q, mean (a) Nagar Panchayats, by whatever name called, for areas in transition from rural areas to urban areas, (b) Municipal Councils for smaller areas and (c) Municipal Corporations for larger urban areas.

2. Under Article 324 of the Constitution the Election Commission is concerned only with the superintendence, direction and control of the preparation of the electoral rolls for and conduct of all elections to Parliament and to the legislature of every State and of elections to the offices of the President and the Vice-President under the Constitution. The Election Commission of India is, thus, an authority distinctly separate from the Election Commission of the States and Union Territories by virtue of its mandate and jurisdiction assigned under the Constitution. It has no role in the preparation of the electoral rolls for or the conduct of elections to the Panchayats and Municipalities as defined above.

3. Having regard to the above Constitutional scheme, it will not be legal or proper to entrust any item of work relating to the preparation of electoral rolls for, or the conduct of elections to Panchayats and Municipalities under the Constitution (Seventy-third Amendment) Act, 1992 and the Constitution (Seventy-fourth Amendment) Act, 1992 to the electoral machinery in the State which functions under the superintendence, direction and control of the Election Commission of India - namely, the Chief Electoral Officers, District Election Officers, Electoral Registration Officers, Returning Officers and Assistant Returning Officers who are appointed by the Commission under the various provisions of the Representation of the People Act, 1950 and the Representation of the People Act, 1951.

4. However, at the same time, the Commission has no intention of disabling the State Governments from utilising the services of the aforesaid officers for the conduct of Panchayats and Municipalities elections. The Commission, accordingly, will have no objection to the officers mentioned in para 3, other than Chief Electoral Officers, performing any duties relating to the Panchayats and Municipalities elections so long as a clear distinction is made that those officers are performing duties relating to the said elections under the States Acts and NOT under Article 324 of the Constitution and the Representation of the People Act, 1950 and Representation of the People Act, 1951 or any rules made thereunder, as officers of the Election Commission of India. In other words, there should be unambiguous provisions to the effect that no work is or should be entrusted to them in their capacity as District Election Officers, Returning Officers, Electoral Registration Officers, etc. appointed by the Election Commission of India under the Representation of the People Act, 1950 and Representation of the People Act, 1951 or rules made thereunder and while functioning subject to the superintendence, direction, control and discipline of the Election Commission of India.

5. As regards Chief Electoral Officers of the State Government, they are so nominated by the Commission in consultation with the State Government/Union Territory Administration concerned in terms of section 13A of R.P. Act, 1950. Under Section 20A of Representation of the People Act, 1951, they supervise the conduct of all elections in the State under the RP Act and are subject to the exclusive supervision, discipline, control and direction of the Commission. The Commission nominates full-time officers as Chief Electoral Officers exclusively for the work relating to the elections under the Election Commission of India. Entrustment of any work relating to Panchayats and Municipal elections to them, therefore, formally or otherwise, will not be legal or proper. Any work relating to the elections of the Panchayats and Municipalities should, therefore, not be entrusted to them qua Chief Electoral Officers under the Election Commission of India.



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