Source Code: The Founding of the Election Commission of India (ECI):

A Historical Primer, from Colonial Rule to 1952

“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 the very root of democratic Government”—Dr. B. R. Ambedkar in Proceedings of the Constituent Assembly Debates)

“It is essential. However, that in order that the system of adult suffrage may work fairly and smoothly, two other conditions must be satisfied viz., (1) the conduct of elections be strictly non-partisan or under neutral control, and (2) the executive government must sincerely desire free and fair elections and actively work for the same”—Election Commission of India 1955.

         In recent times, the functioning of the Election Commission of India (ECI) which was considered a beacon of democracy for many years, has found itself at the centre of a crisis due to a controversy over its inner workings. Most recently, an estimated 133.7 million names have been left out of the draft electoral rolls. This should be juxtaposed with the fact that the number of people who are now left out are an equivalent to about 77% of the electorate who were included in the electoral roll for India’s first general election of 1951-52.

        In the midst of the media coverage of this critical issue, it is important to trace some of the key historical foundations of the institution, including its role in organizing India’s first general elections of 1951–52 and its evolution as the custodian of voting rights, a fundamental building block of constitutional democracy. In a sense, what we are witnessing is a critical juncture in the process of institutional development of the ECI—an institution that is now under severe strain—in part because of the convergence of domestic and global headwinds accompanying the broader retreat of democratic values. In order to understand the present, it is therefore important to understand the original intent behind the institutional formation of the ECI.

Initial Conditions: The Debate over Franchise in Late Colonial India

         It is very important to point out that “British” India was marked by a high degree of variation in the extent of control exercised by colonial authorities with two distinctive spheres: territories under British rule and the territories distributed among approximately 560 “princely” states with varying degrees of autonomy.  Viewed from the vantage point of institution building, the colonial period was marked by a large amount of contestation that revolved around the delegation of powers to Indians at both the Central and Provincial levels. The building of democratic institutions, however, occurred in an extremely decentralized manner, with the colonial authorities controlling important veto points throughout the democratization process.

            Prior to the enactment of the Government of India Act of 1935, the three Round Table Conferences of 1930-1932 introduced questions of constitutional reform and franchise into the negotiations with the British government (see Benn 1931 and Pratt 1932 for a detailed description of the proceedings of the conferences). From an electoral governance perspective, the problem of franchise is of critical interest, primarily because it emerges at a time when the debate over instituting a mass-based democracy in the federation (versus a narrower elitist one) dominated the proceedings of the Round Table Conferences. It is thus useful to examine certain aspects of the proceedings of the Indian Franchise Committee (constituted after the Second Roundtable Conference in 1931).

     Formed in 1932 after a declaration by the British Prime Minister in a letter to Parliament in December 1931, the Indian Franchise Committee was tasked to “frame a scheme for the franchise and the constituencies of the new legislatures, central and provincial, suitable for the system of responsible government” (Indian Franchise Committee 1932, 8).

          As stated by the Committee, it interpreted the term responsible government as imbibing two meanings: first, it implied that the executive should be formed from the legislature and that the decision regarding the continuation of the party in government must be made at regular intervals by the electorate; second, legislation should reflect public opinion and the general mass of the population should be represented in the legislature with adequate protection for minority interests. As Lord Lothian, the Chairman of the Committee stated, the fundamental problem of reworking legislative institutions was that: “Granted a restricted franchise, how are you going to distribute the voting power so that you can reasonably say that the general mass of the population, while not individually franchised, will be represented in the legislature, and that no section of the community will be deprived of the means of expressing its needs and opinions?” (Lothian 1932, 602).

           The Committee decided that, keeping in mind the high volume of illiteracy and economic backwardness prevalent in the population, it would be untenable to extend universal adult franchise. Rather, by reducing the property and educational qualifications, the electorate in the provinces would be extended from a total of 7 million to 36 million (14% of the population).

In addition, it was decided that women would be allowed to vote, the proportion of women voters to male voters being maintained at about 1 woman to 4 men. The Committee was also concerned with the question of representation of special interest groups and minorities in British India.

          Of special significance was the recognition by the Committee that “depressed” classes or untouchables would be allowed to vote (though using a “bare literacy” criterion to define eligibility) and that for election purposes they would be distinguished from aboriginal and hill tribes. The Committee also conceded that agricultural labor could not be represented as a special constituency and no seats would be reserved for this section of society (although they agreed to some representation for members of trade unions). Lastly, the Committee stated that representation of minorities such as the European population, Anglo-Indians, Indian Christians as well as interest groups such as the chambers of commerce, universities and landlords would be retained in the provincial legislatures. Most importantly, the Committee did not resolve the wider question of separate electorates for Hindus and Muslims throughout British India.

       The investigations of the Committee also revealed a very problematic state of election administration at that time. As the report of the Committee stated:

 As a result of our enquiries, we are satisfied that many of the polling arrangements in use in various provinces in British India are unduly elaborate and overcautious. There is no uniformity in polling arrangements and technique and there is a good deal of wastage of polling capacity. There is no uniform basis for the qualifications and grades of officers who are considered competent and who may be made available as presiding and polling officers. One of the provinces mans a polling station with one presiding officer and one clerk while another province finds it necessary to employ one presiding- officer and four or more clerks to poll the same number or even less. One province fixes the polling capacity at one station at less than 300 electors while others place it at a thousand or even more. In one province there is no secrecy of the ballot under the present system even in the case of literate voters, and in another the practice is that the presiding officer marks the ballot paper of illiterate voters in the presence of the candidates or their polling agents, who can hear the voter's request and watch the actual marking of the ballot paper; another province insists that the marking should be done in the presence of the presiding officer alone (Indian Franchise Committee 1932, 177).

             Despite the current state of affairs, the Committee did not seek any major reform of the system of electoral administration (though it suggested that the clerical staff preparing the electoral rolls should not be electors).

                Although provincial elections were held in 1937, under the terms and conditions of the Act of 1935, there was no implementation of the federal provisions. This can especially be attributed to the refusal of the princely states to formally accede to the union. With the start of the Second World War, the subsequent resignation of the Congress ministries in the provinces, and the Quit India Movement of 1942, electoral politics receded into the background under the restrictions placed by The Defence of India Act, 1939, and The India and Burma (Postponement of Elections) Act, 1941 (Singh 2000). In 1942, the Cripps Mission arrived in India to conduct negotiations between political parties and outlined a plan for postwar governance. In 1945, the new Labour Government in Britain began preparing for Indian independence, culminating in the dispatch of the Cabinet Mission in 1946, which established a framework for the transfer of power, the Constituent Assembly, and an interim government.

           The end of the Second World War was accompanied by heightened nationalist agitation and the demand for Pakistan, which was to be carved out of the Muslim-majority provinces of British India. The general elections of 1945–46, conducted under separate communal electorates, resulted in an overwhelming victory for the Muslim League in Muslim-reserved constituencies, thereby strengthening its demand for Pakistan (Gilmartin 1998). The elections were also important in identifying the principal political parties with which the British government would negotiate the transfer of power (Kuwajima 1998). The Muslim League subsequently joined the Interim Government in October 1946 but initially boycotted the Constituent Assembly. On 3 June 1947, plans for the partition of British India were formally announced, with separate Constituent Assemblies for India and Pakistan. As Yasmin Khan (2007) shows, partition was accompanied by severe food shortages, an economic crisis, spiraling Hindu-Muslim violence that resulted in more than a million deaths, the hasty withdrawal of the British-administered state, and the unanticipated mass transfer of more than 12 million people across new boundaries.

Why the Constitution Created a Central Election Commission

The Constituent Assembly established in 1946 marked an important change, as Indians were given a representative body specifically responsible for drafting the Constitution, albeit through indirect representation. 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 Acts, the reasoning behind the creation of the institution was challenged by members of the Assembly. The preponderance of the INC within and outside the formal structures of governance 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.

           As shown earlier in a rather prescient manner by D. G. Karve (1940), the exercise of authority at the provincial level by the various Congress ministries had certain inherent features that lent themselves to the malfunctioning of electoral democracy. According to Karve, “Political conditions in India tend to discourage the organization of balanced parties” (1940, 299). Moreover, he stated, “For the successful working of democracy, among other things, balanced party conditions are needed” (ibid). The most interesting part of his analysis of 1940 states:

Another, tendency the further progress of which must be carefully watched, is towards the exercise of extra-constitutional control over ministries and legislative parties. This tendency is most prominent in the case of the congress party, but is not absent from other parties. In the special conditions of India, as that of any continental federation, the unifying force of party organization is very much to be desired. The fissiparous tendencies inherent in federalism can hardly be held in check in the absence of strong national parties. What deserves anxious watching in the growth of centralizing forces in the congress party is not, therefore, their unifying efforts. These are not only tolerable but welcome. A more doubtful tendency is towards narrowly restricting the freedom of action of ministers or members of the legislature. The responsibility of the ministers is primarily to their legislatures and of these latter to the electorate. The party machine can help keep up the tone and devotion of their adherents in the legislature, and can convey to them the real state of public feeling in the country. In India, where public opinion is as yet not sufficiently instructed, articulate, or free, there is a real danger of extraconstitutional rule exercised by the almost demagogic power of a group of popular leaders (Karve 1940, 299-300). 

        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 (1 crore is 10 million) -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. 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 second 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 as seen in the brief description of the 1951-52 elections. These elections were critical in generating certain norms and practices, which were then carried over into the functioning of the ECI in the post-1952 era.

The 1951-52 General Elections

      The elections of 1951-52 were a pivotal event in the history of the ECI. The election was the first test of the institution as an instrument of credible commitment. From the perspective of the newly created institution, the elections posed several intractable challenges. As described by the Commission in the Report on the First General Elections 1951-52 initial preparations for the elections started after the Constituent Assembly Secretariat notified the provinces in November 1947. Taking stock of the situation in the beginning of 1949 the Commission found:

No electoral law had been passed by Parliament as the provisions were in the drafting stage. No decision had been made regarding the specification of indigenous tribes and castes that were to have reserved seats in the legislatures. The electoral rolls were still being prepared and were in the drafting stage (thus devoid of legal authority).

There were no laws enacted that would govern the delimitation of constituencies (or voting districts).There was a great deal of variation in all the provinces with respect to the preparation for the elections (see Election Commission of India 1955, 22-23).

        In order to expedite preparations for the elections the Constituent Assembly which was functioning as an interim Parliament (since 26th January 1950) passed two measures which detailed the legal framework under which elections were to be held: Representation of the People Acts of 1950 and 1951. Two sets of administrative rules flowing from the Acts established the basic architecture for electoral administration: the Representation of the People (Preparation of Electoral Rolls) Rules, 1950, and Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951.

      While the first measure dealt with the qualification of voters, the preparation of rolls and the delimitation of constituencies, the second measure laid down the qualification and disqualification of candidates and defined what were termed as corrupt practices and electoral offences. The decision by the Assembly to conduct the polls on the basis of universal adult franchise meant that norms, procedures and processes had to be created for an electorate numbering some 173 million (Tinker and Walker 1956). Significantly, the provision of universal adult franchise enabled nearly 80 million women to vote. Keeping in mind the scale of the post-Partition displacement (where in the state of Punjab alone there were 2 million refugees; see Election Commission of India 1955, 71) the Commission sought to simplify the registration process. With rules of citizenship still being formulated, it was decided that liberal rules of voter eligibility were required.

        Also crucial for the conduct of the process was the problem of the high level of illiteracy, which loomed around 85% of the general population (Park 1952a). The concept of voting was alien to the majority of the population in the rural areas. Thus, on what basis would parties appeal to first-time voters, when their party programs cannot be read; conversely, how would voters recognize the name of the candidate or the party for whom they are voting? Having election officers assist voters would have compromised the secrecy of the ballot. The Election Commission therefore adopted a system of symbols to enable voters to identify candidates. Each candidate was assigned a separate ballot box bearing a distinctive symbol, and voters deposited their ballot paper in the box bearing the symbol of the candidate of their choice (Election Commission of India 1955, 80–85).

         It is very difficult to describe the scale of the entire exercise in minute detail and I have excluded from the narrative the intense preparatory work that went into the placement of polling stations, the development of the rules for broadcasting, the efforts to educate voters in remote regions, the coordination problems between the provinces and the Office of the CEC, effort to solve the problem of delimitation and lastly the preparation of the electoral rolls (all this occurring when there were no computers or any advanced mapping technologies available).

             Nevertheless, it is important to describe certain facts and figures that inform us about the scale of the exercise. The total number of seats being contested for the central legislature (Lok Sabha) was 489, of which 72 were reserved for the Scheduled Castes and 26 for the Scheduled Tribes (Election Commission of India 1955, 56). The total number of seats being contested for the Legislative Assemblies of the States was 3,283, of which 477 seats were reserved for the Scheduled Castes and 192 for the Scheduled Tribes (ibid.). For the election itself, there were 196,084 polling booths, including 27,527 booths reserved for women. As for the candidates and parties, 1,874 candidates contested the Lok Sabha elections, while 15,361 candidates contested the State Assembly elections. Of these, 524 Lok Sabha candidates and 5,893 Assembly candidates were independents (Election Commission of India 1955, 84–87).    

                  The results of the general elections were predictable for contemporary observers. Unlike other national parties, the INC could actually claim to be an all-India party with an extremely efficient organizational structure in most, if not all voting districts. Added to this the INC also capitalized on the prestige of being the party that bore the major responsibility of bringing about independence. The scale of the INC victory can be gauged by the following statistics: of the 489 seats contested in the central legislature (Lok Sabha), the INC won 364; similarly, of the 3,283 seats contested in all Legislative Assemblies of the states, the party won 2,248 (see Park 1952b for detailed description of the results).

      It is useful to conclude with an observation made by the Commission regarding the 1951-52 election process:

Experience demonstrates, therefore, that literary education, however desirable, is not an essential condition for the successful working of adult suffrage. However backward and ignorant the common man in an “underdeveloped” country may be, he possesses in his own way enough common sense to know what is good for him. Given a simple enough system of ballot which he understands, he can be trusted to cast his vote intelligently in accordance with his own free will favour of the representative of his choice. It is essential. However, that in order that the system of adult suffrage may work fairly and smoothly, two other conditions must be satisfied viz., (1) the conduct of elections be strictly non-partisan or under neutral control, and (2) the executive government must sincerely desire free and fair elections and actively work for the same (Election Commission of India 1955, 11).

This repository of experience that emerged with the conduct of elections on the basis of universal adult franchise also became important for newly independent nations. While the ECI has shared its expertise globally since its inception, it is important to note that Mr. Sukumar Sen was appointed as the Chairman of the International Election Commission that then oversaw Sudan’s first general election of 1953 under principles of universal adult franchise.

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(Views expressed are personal)

The author is a Professor at Jindal Global Law School (JGLS), O.P. Jindal Global University, Sonipat (Haryana).