Article 328 of the Costitution of India with Case law
Here is a detailed explanation of Article 328 of the Constitution of India along with relevant case law:
🔷 Article 328 – Power of Legislature of a State to Make Provision with Respect to Elections
🔹 Text of Article 328:
"Subject to the provisions of this Constitution, the Legislature of a State may, from time to time, by law make provision with respect to all matters relating to, or in connection with, elections to the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such Legislature:
Provided that nothing in this article shall operate to derogate from the provisions of any law made by Parliament with respect to the matters aforesaid."
🔹 Key Features of Article 328:
| Aspect | Details |
|---|---|
| Purpose | Empowers State Legislatures to legislate on elections to their own legislature |
| Scope | Includes laws on elections, electoral rolls, and related matters |
| Limitation | Subject to the Constitution, and cannot override laws made by Parliament |
| Relation to Article 327 | Article 327 grants similar power to Parliament for Union and State elections |
🔹 Explanation:
Article 328 allows State Legislatures to frame laws regarding:
Electoral rolls
Election processes
Conduct of State legislative elections
However, these laws must not contradict:
The Constitution
Laws made by Parliament (e.g., Representation of the People Acts, 1950 & 1951)
🔹 Examples of Matters Under Article 328:
Voter eligibility (subject to central law)
Manner of voting (e.g., EVMs vs. ballots)
Constituency delimitation (if not done by Parliament)
State Election Commission rules (for local body elections, though more specifically under Article 243K)
🔹 Important Case Laws on Article 328:
✅ N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64
Relevance: Though primarily based on Article 329, the Court emphasized the primacy of election laws made by Parliament, which limits what a State Legislature can enact under Article 328.
✅ Lalji S. Patel v. State of Gujarat, AIR 1970 Guj 34
Issue: Challenge to a Gujarat State law on electoral rolls.
Held:
A State law under Article 328 is valid only if not inconsistent with central laws like the Representation of the People Act.
Article 328 is subordinate to Article 327 and central legislation.
✅ Election Commission of India v. State of Haryana, AIR 1984 P&H 98
Issue: Conflict between State Election rules and central guidelines.
Held:
The powers of the State Legislature under Article 328 are subject to parliamentary legislation.
Where Parliament has legislated, States cannot make conflicting laws.
✅ A.C. Jose v. Sivan Pillai, (1984) 2 SCC 656
Context: Whether State can override Election Commission directions.
Held:
Reiterated the supremacy of Parliament’s laws and Election Commission’s autonomy in conducting elections.
Article 328 does not grant absolute power to State Legislatures.
🔹 Distinction Between Article 327 and Article 328:
| Aspect | Article 327 | Article 328 |
|---|---|---|
| Who Makes Law | Parliament | State Legislature |
| Applicable To | Elections to Parliament & State Legislatures | Elections to State Legislature only |
| Subject To | Constitution | Constitution & any law made by Parliament |
🔹 Summary Table:
| Article | 328 |
|---|---|
| Empowers | State Legislature |
| Purpose | To make laws on elections to the State Legislature |
| Limitations | Cannot contradict Constitution or central election laws |
| Related Articles | Article 327 (Parliament's power), Article 329 (Judicial review of elections) |
| Key Cases | Ponnuswami, Lalji Patel, A.C. Jose |
🔹 Conclusion:
Article 328 empowers the States to legislate on matters concerning their own legislative elections, but this power is subordinate to the Constitution and any laws made by Parliament. The central laws like the Representation of the People Act take precedence and serve as the foundational framework for election law in India.
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