The Election Commission of India and Free and Fair Elections Under Article 324

Article 324 of the Constitution vests the superintendence, direction and control of elections to Parliament, the State Legislatures and the offices of President and Vice-President, along with the preparation of electoral rolls, in the Election Commission of India. The Supreme Court has read this as a wide power that fills gaps where Parliament's election laws are silent, but not a power to override those laws. Since 2 January 2024, appointments to the Commission are governed by a 2023 Act of Parliament, which is itself under challenge in the Supreme Court.

This explainer is for B.A. LL.B. and LL.B. students preparing constitutional law papers, and for any voter in Kanyakumari or elsewhere who wants to know why the Commission can order a repoll, revise the voter list or enforce the Model Code of Conduct. Elections are where constitutional law meets daily life, so examiners like this topic.

What does Article 324 actually say?

Read the Article clause by clause. A short summary:

• Clause (1): superintendence, direction and control of the electoral rolls and of the conduct of elections to Parliament, State Legislatures, and the offices of President and Vice-President vest in the Election Commission.
• Clause (2): the Commission consists of the Chief Election Commissioner (CEC) and such other Election Commissioners as the President fixes, appointed by the President subject to any law made by Parliament.
• Clause (3): where there are other Commissioners, the CEC acts as Chairman.
• Clause (4): Regional Commissioners may be appointed, after consulting the Commission, before general elections.
• Clause (5): the CEC can be removed only in the manner and on the grounds of a Supreme Court judge, and his conditions of service cannot be varied to his disadvantage after appointment. Other Commissioners can be removed only on the CEC's recommendation.
• Clause (6): the President or the Governor must provide the staff the Commission needs when it asks.

Notice what Article 324 does not cover: panchayat and municipal elections. In Tamil Nadu these are conducted by the Tamil Nadu State Election Commission under Articles 243K and 243ZA, read with section 239 of the Tamil Nadu Panchayats Act, 1994 and section 5 of the Tamil Nadu Urban Local Bodies Act, 1998. So a ward election in Nagercoil Corporation is not an Article 324 matter.

How are the Chief Election Commissioner and the Election Commissioners appointed?

For decades Parliament made no law under clause (2), and the executive effectively chose the Commissioners. In Anoop Baranwal v. Union of India (decided 2 March 2023), a five-judge Constitution Bench held that, until Parliament enacted a law, appointments would 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.

Parliament then passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 (Act 49 of 2023), in force from 2 January 2024. The key provisions:

• Section 5: appointees must hold or have held a post equivalent to Secretary to the Government of India, with integrity and experience in managing and conducting elections.
• Section 6: a Search Committee headed by the Minister of Law and Justice prepares a panel of five names.
• Section 7: the Selection Committee is the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister. The Chief Justice is no longer on it.
• Section 10: salary equal to that of a Supreme Court judge.
• Section 11: removal of the CEC as for a Supreme Court judge; other Commissioners only on the CEC's recommendation.
• Section 16: no court shall entertain civil or criminal proceedings against a serving or former CEC or Commissioner for acts or words in the discharge of official duty.

In Jaya Thakur v. Union of India (order of 22 March 2024), the Supreme Court refused to stay the Act or the appointments made under it, mainly because the 2024 Lok Sabha elections were about to begin. The bench of Sanjiv Khanna and Dipankar Datta JJ. said its observations were tentative because the matter was sub judice, and it did not decide whether section 7(1) is valid. Gyanesh Kumar was appointed CEC under the new law in February 2025. Check the current status of the challenge before your exam.

How wide is the Article 324 power?

The leading case is Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405, decided by a five-judge bench with Krishna Iyer J. writing. Three points to remember:

1. Article 324 operates in areas the legislature has not occupied, so the Commission can act where the statute is silent, for example by cancelling a poll and ordering a fresh one.
2. The power is not unlimited. The Commission is not a law unto itself, and it must act fairly and within the rule of law.
3. Article 329(b) bars courts from interfering with the electoral process mid-way. The remedy is an election petition after the result.

The limit is shown by A.C. Jose v. Sivan Pillai (decided 5 March 1984). In the 1982 election to the Parur Assembly constituency in Kerala, the Commission had used electronic voting machines at 50 of the 85 polling stations when the Act and Rules prescribed ballot papers. The Supreme Court held the order was without jurisdiction because Article 324 cannot override express law. Parliament responded by inserting section 61A into the Representation of the People Act, 1951, in force from 15 March 1989, and EVMs then had a statutory basis. Later, in Subramanian Swamy v. Election Commission of India (2013) 10 SCC 500, the Court called the paper trail (VVPAT) an indispensable requirement of free and fair elections.

The Model Code of Conduct fits the same pattern. It is not found in the Representation of the People Acts or the Conduct of Election Rules, 1961, yet the Commission enforces it through its Article 324 power.

What power does the Commission have over electoral rolls?

Article 324(1) expressly covers "the preparation of the electoral rolls", so this is not a residuary power. The detail sits in the Representation of the People Act, 1950, which Parliament made under Article 327. Section 21(3) of that Act lets the Commission, for reasons to be recorded, direct a special revision of the roll for a constituency or part of one at any time. The Special Intensive Revision of rolls ordered in Bihar in 2025 was challenged in the Supreme Court in Association for Democratic Reforms v. Election Commission of India, with the petitioners arguing that the exercise could exclude genuine voters. We have not been able to confirm the final outcome from an official source, so check the Supreme Court website for the current position before you cite it. In an answer, the safe point is structural: Articles 324 and 327 work together, and the Commission's roll powers are exercised within the 1950 Act.

What about the Madras High Court?

A Tamil Nadu case reached the Supreme Court in Chief Election Commissioner of India v. M.R. Vijayabhaskar (May 2021). The Madras High Court had made harsh oral remarks about the Commission's handling of COVID-19 protocols during the 2021 campaign, and the Commission asked the Supreme Court to stop the media reporting them. A bench of D.Y. Chandrachud and M.R. Shah JJ. refused to gag the media: oral remarks are not part of the judicial record, so there was nothing to expunge, and open courts and press reporting were upheld. The lesson for students is that accountability for the Commission comes from courts, the press and the public, not only from statute.

Where are election offences found after the BNS?

Bribery, undue influence and personation at elections are now in Chapter IX of the Bharatiya Nyaya Sanhita, 2023: sections 169 to 177 (for example, section 173 punishes bribery and section 174 punishes undue influence or personation). These replaced Chapter IXA of the old IPC (sections 171A onwards). The Representation of the People Act, 1951 adds its own offences, such as section 126 on the 48-hour silence period before the close of poll.

How to write about Article 324 in an exam

1. Open with the text of Article 324(1) and the idea of free and fair elections as part of democracy.
2. Explain the plenary but residuary nature of the power using Mohinder Singh Gill, then the limit using A.C. Jose and section 61A.
3. Deal with independence: Article 324(5), Anoop Baranwal, the 2023 Act and the pending challenge.
4. Add a current example, such as the challenge to the Bihar Special Intensive Revision, after checking its latest status.
5. Close with your own view on independence and accountability, supported by the cases you cited.

If you are planning a career in constitutional practice, our programmes page sets out the courses where this topic is taught.

Sources

• Constitution of India: Article 324: text and clause history of the Article.
• Supreme Court Observer: Election Commission Appointments case: case page and timeline for Anoop Baranwal, judgment of 2 March 2023.
• PRS Legislative Research: Bill summary: summary of the Bill as introduced (the enacted Act later changed the Search Committee head and salary terms).
• Chief Election Commissioner and Other Election Commissioners Act, 2023: full text of Act 49 of 2023.
• Mohinder Singh Gill v. Chief Election Commissioner: Supreme Court judgment on the scope of Article 324 and Article 329(b).
• Jaya Thakur v. Union of India: Supreme Court order of 22 March 2024 refusing interim stay.
• Election Commission of India: Legal History of EVMs and VVPATs: covers A.C. Jose, section 61A and Subramanian Swamy.
• Tamil Nadu State Election Commission: constitution of the Commission and its legal basis.