(a) "Free and fair election is the 'basic structure' of our Constitution and it is the 'heartbeat' of democracy." But widespread…

(a) Free and fair elections as a constitutional value

• Part of the basic structure: in Indira Nehru Gandhi v Raj Narain (1975), the Supreme Court held free and fair elections to be part of the basic structure, and struck down clause (4) of Art 329A.
• The ECI's powers: under Art 324, the Election Commission of India (ECI) has superintendence, direction and control of elections to Parliament, the State Legislatures and the offices of President and Vice-President. Mohinder Singh Gill v Chief Election Commissioner (1978) described Art 324 as a reservoir of power to act where the law is silent.

The threat

• Criminalisation: according to ADR's analysis of affidavits, about 46% of the Lok Sabha members elected in 2024 had declared criminal cases, many of them serious.
• Money power: spending in excess of the limits, cash and freebies, and paid news.
• Other threats: booth capturing in the past, hate speech, and misinformation.

Efforts by the ECI

• 1. Model Code of Conduct (MCC): a consensus code, enforced strictly since the 1990s (the T.N. Seshan era). It restrains the ruling party's misuse of official machinery, new schemes and transfers once elections are announced.
• 2. Integrity of the voter and the vote:
• Electors' Photo Identity Cards (1993);
• EVMs, with VVPAT introduced after Subramanian Swamy v ECI (2013);
• in ADR v ECI (2024), the Supreme Court rejected a return to paper ballots and full VVPAT counting, but allowed candidates to seek verification of EVM microcontrollers;
• electoral roll revision, including the contested Special Intensive Revision of rolls in Bihar in 2025, which is under the Supreme Court's scrutiny.
• 3. Disclosure and criminalisation:
• following Union of India v ADR (2002) and PUCL v Union of India (2003), candidates must file affidavits (Form 26) disclosing criminal antecedents, assets, liabilities and education;
• after Public Interest Foundation v Union of India (2018) and Rambabu Singh Thakur v Sunil Arora (2020), parties must publish the criminal records of their candidates, and the reasons for choosing them, within 48 hours of selection;
• the ECI enforces these directions and can refer non-compliance to the Supreme Court.
• 4. Money power:
• expenditure limits and expenditure observers;
• flying squads and seizures;
• scrutiny of accounts, with disqualification for failure to lodge them (s.10A, Representation of the People Act, 1951);
• action against paid news.
• After ADR v Union of India (2024) struck down the electoral bonds scheme, the ECI published the donation data the Supreme Court ordered disclosed.
• 5. Voter empowerment:
• NOTA (PUCL v Union of India (2013));
• SVEEP voter education;
• the cVIGIL app for citizens to report violations;
• facilities for persons with disabilities, senior citizens and home voting.
• 6. Administrative control:
• deployment of central forces and observers;
• transfer of officials;
• countermanding or adjourning polls (ss.57–58A, RPA).

Limits and needed reforms

• Legal limits on the ECI:
• it cannot deregister parties except on narrow grounds (INC v Institute of Social Welfare (2002));
• it cannot bar candidates facing charges; only conviction disqualifies (s.8, RPA). In Lily Thomas v Union of India (2013), the Court struck down s.8(4), so that disqualification now applies immediately on conviction.
• Independence of the ECI: in Anoop Baranwal v Union of India (2023), the Court required a committee of the PM, the Leader of the Opposition and the CJI to select Election Commissioners. The CEC and Other ECs Act, 2023 replaced the CJI with a Union Minister, and this is under challenge.
• Proposed reforms (Law Commission 170th Report (1999), 244th (2014) and 255th (2015); ECI proposals):
• disqualification on the framing of charges for serious offences;
• state funding of elections;
• inner-party democracy;
• powers to deregister parties;
• statutory status for the MCC.
• Conclusion: the ECI has used Art 324 creatively. Lasting improvement, however, requires legislative reform and political will.

(b) Grounds (Art 356)

• When the proclamation may be made: the President may issue a proclamation if satisfied, on the Governor's report or otherwise, that the government of the State cannot be carried on in accordance with the Constitution.
• Failure to comply with Union directions: under Art 365, failure to comply with Union directions allows the President to reach this conclusion.
• The Union's duty (Art 355): the Union must ensure that every State's government is carried on in accordance with the Constitution.

Consequences of the proclamation

• 1. Executive:
• the President may assume all or any functions of the State Government and the powers of the Governor or any State authority (Art 356(1)(a));
• in practice, the Governor administers the State with advisers, on behalf of the President;
• the Council of Ministers is dismissed.
• 2. Legislature:
• the powers of the State Legislature become exercisable by or under the authority of Parliament (Art 356(1)(b));
• the Assembly is suspended (kept in animation) or dissolved;
• under S.R. Bommai v Union of India (1994), the Assembly may be dissolved only after both Houses approve the proclamation. Until then it can only be suspended, and it revives if the proclamation is disapproved or invalidated.
• 3. Law-making (Art 357):
• Parliament may confer on the President the power to make laws for the State, and permit its delegation;
• the President may authorise expenditure from the State's Consolidated Fund pending Parliament's sanction;
• laws made during the proclamation continue after it ends, until altered by the State Legislature.
• 4. Suspension of constitutional provisions: the President may suspend provisions relating to any body or authority in the State (Art 356(1)(c)). However, he cannot assume the powers of the High Court.
• 5. Fundamental Rights and the federal balance:
• unlike a National Emergency (Arts 358–359), Fundamental Rights are not affected;
• the State's relationship with the Centre becomes effectively unitary for that period.
• 6. Duration and parliamentary control:
• the proclamation must be approved by both Houses within two months;
• it lasts six months at a time, up to a maximum of three years;
• continuation beyond one year requires that a National Emergency be in operation and that the Election Commission certify that elections cannot be held (44th Amendment, 1978).

Judicial review

• The 44th Amendment deleted clause (5), inserted by the 38th Amendment, which had made the President's satisfaction final.
• ***S.R. Bommai* (1994):**
• the proclamation is justiciable on grounds of mala fides and of irrelevant or no material;
• a floor test is the proper way to decide majority;
• secularism is a basic feature, and its violation can justify Art 356;
• maladministration or political disagreement is not enough.
• Later cases:
• ***Rameshwar Prasad v Union of India* (2006):** the dissolution of the Bihar Assembly was held unconstitutional;
• ***Union of India v Harish Chandra Singh Rawat* (2016):** President's Rule in Uttarakhand ended after a floor test supervised by the Supreme Court restored the Rawat government.
• Practice: Art 356 has been invoked over 100 times, most recently in Manipur (2025). The Sarkaria (1988) and Punchhi (2010) Commissions urged that it be used only as a last resort.

(c) Meaning

• What natural justice is: minimum standards of fairness in judicial, quasi-judicial and administrative action.
• Application to administrative action: since A.K. Kraipak v Union of India (1969) and State of Orissa v Dr (Miss) Binapani Dei (1967), natural justice applies to administrative actions that entail civil consequences (Mohinder Singh Gill (1978)).
• Link to Art 14 and Art 21: after Maneka Gandhi v Union of India (1978), natural justice is part of the fair, just and reasonable procedure required by Arts 14 and 21.

1. Nemo judex in causa sua: the rule against bias

• Pecuniary bias: even a small financial interest disqualifies (Dimes v Grand Junction Canal (1852)).
• Personal bias: friendship, relationship or hostility. The test is whether there is a real likelihood or reasonable apprehension of bias (Manak Lal v Dr Prem Chand Singhvi (1957); Ranjit Thakur v Union of India (1987)).
• Official or subject-matter bias:
• ***A.K. Kraipak*:** a selection board was vitiated because one member was himself a candidate, even though he withdrew when his own case was considered;
• ***Gullapalli Nageswara Rao v APSRTC* (1959):** the Secretary who had initiated a nationalisation scheme could not hear objections to it.
• Exception: the doctrine of necessity. An authority that is the only one competent to decide may do so despite bias (Election Commission of India v Dr Subramaniam Swamy (1996)).

2. Audi alteram partem: the right to a fair hearing

• The components of a fair hearing:
• notice of the case to be met;
• disclosure of the adverse material relied on;
• an opportunity to present one's case and rebut evidence;
• in appropriate cases, cross-examination.
• Legal representation is not an absolute right.
• Key cases:
• ***Ridge v Baldwin* (1964):** a chief constable's dismissal without hearing was void;
• ***Olga Tellis v Bombay Municipal Corporation* (1985):** pavement dwellers were entitled to a hearing before eviction;
• ***Maneka Gandhi* and Swadeshi Cotton Mills v Union of India (1981): where urgency prevents a prior hearing, a post-decisional hearing** may satisfy the rule;
• ***Madhyamam Broadcasting v Union of India* (2023): sealed-cover** procedures that deny disclosure were disapproved.

3. Reasoned decisions (the third principle)

• ***Siemens Engineering v Union of India* (1976) and *S.N. Mukherjee v Union of India* (1990):** reasons show that the mind was applied, and they enable judicial review.
• ***Kranti Associates v Masood Ahmed Khan* (2010):** reasons were described as the "heartbeat" of every conclusion.

Exceptions and flexibility

• Grounds on which natural justice may be excluded or limited:
• an express statutory or constitutional provision (Art 311(2), second proviso; Union of India v Tulsiram Patel (1985));
• emergency;
• confidentiality or national security;
• legislative action;
• the "useless formality" theory (Aligarh Muslim University v Mansoor Ali Khan (2000)).
• The prejudice test: courts increasingly ask whether prejudice was caused (State Bank of Patiala v S.K. Sharma (1996)), although a denial of hearing is itself prejudicial in many cases (S.L. Kapoor v Jagmohan (1980)).
• Conclusion: natural justice is flexible. Its content varies with the context, but its core, fairness, is constitutionally entrenched.