The Election Commission must act tough
- The 2019 general election will long be remembered not just for the transgressions of the top political leadership, but also for the Election Commission (EC) itself being put in the dock.
- The EC has repeatedly found itself at the receiving end of scathing attacks from the Opposition, the public, the media and the judiciary.
- This is unprecedented for what was until now the most trusted institution in the country.
Case of a trust deficit?
- Experts opine that the trust deficit between the EC and the Opposition parties and the voters started with the EVM/VVPAT saga.
- The EC was accused of being on the defensive rather than being communicative.
- On April 8, 2019, in a letter to the President, a group of retired bureaucrats and diplomats expressed concern over the EC’s “weak-kneed conduct” and said that the institution is “suffering from a crisis of credibility today”.
- As a matter of fact, it took repeated raps on its knuckles by the Supreme Court for the EC to crack the whip. Experts opine that it is a pity that we needed the Supreme Court to remind the EC of powers that it always had.
The Supreme Court making a course correction:
- Article 329 of the Constitution has barred courts from interfering in electoral matters after the election process has been set in motion.
- As a matter of fact, in a long chain of judgments, the Supreme Court has reiterated that provision and restrained all courts from intervening.
- It is therefore significant that in the last couple of months, the apex court itself had to jump in for course correction. This is more serious than is realized at present.
- On April 15, 2019 a Supreme Court Bench headed by the Chief Justice of India pulled up the EC for not acting against hate speeches and statements on religious lines.
- It was reported that the EC told the apex court, “We are toothless, we are powerless, we issue notices, then advisory and on repeated violation, we file complaint.”
- The Supreme Court was furious with this stand.
- The Supreme Court had observed in 1977 that “where these [the existing laws] are absent, and yet a situation has to be tackled, the Chief Election Commissioner has not to fold his hands and pray to God for divine inspiration to enable him to exercise his functions and to perform his duties or to look to any external authority for the grant of powers to deal with the situation. He must lawfully exercise his power independently, in all matters relating to the conduct of elections, and see that the election process is completed properly, in a free and fair manner.” This has been the EC’s bible.
Prompting the EC to act:
- After the EC had not acted on complaints against Prime Minister Narendra Modi and BJP president Amit Shah for almost a month, the Supreme Court ordered it to do so before May 6, 2019.
- The EC promptly disposed of several complaints, giving the two leaders a clean chit in each case.
- Experts opine that the trust of the people which the Election Commission of India enjoys cannot be taken for granted. The moment there is a deficit of credibility, problems begin.
Important points to be known:
- The three-member “full commission” of the Election Commission consists of the Chief Election Commissioner Sunil Arora and the two election commissioners Ashok Lavasa and Sushil Chandra.
- The poll panel’s rules express preference for a unanimous view, but provide for a majority ruling in the absence of unanimity.
- The opposition had alleged poll code violations committed by Prime Minister Narendra Modi and BJP chief Amit Shah.
- Recently, the Election Commission of India gave clean chits in response to these alleged poll code violations.
- However, certain sections of the media have reported that these recent clean chits by the Election Commission were not unanimous.
- It has emerged that on five occasions, one of the three commissioners dissented with the majority view to let PM Modi and Amit Shah off the hook for their comments.
- The five rulings where one of the commissioners dissented with his two colleagues include two separate instances where the Prime Minister sought votes in the name of the martyrs of the Pulwama terror attacks, in speeches in Maharastra and Karnataka and two separate instances where the Prime Minister questioned Rahul Gandhi’s selection of the Wayanad Lok Sabha seat as pandering to minorities, in speeches in Maharashtra.
- The fifth instance was related to Mr Shah’s comments, also on Wayanad, where in a speech in Nagpur, he said “Rahul Gandhi is contesting in such a place where it is impossible to say when a procession is taken out, whether it is a procession in India or Pakistan”.
- In this case, too, the sole commissioner objected to the majority view granting the BJP president a clean chit.
- Experts opine that the minority view expressed by this sole election commissioner may not have changed the result, but dissent is a healthy sign of objective deliberation, and thus presents a ray of hope.
Alleged inaction on part of the Election Commission:
- Experts opine that while complaints against other leaders were promptly dealt with, there was an obvious delay in taking up those against Mr. Modi.
- Few would have failed to notice that he has been running an abrasive campaign.
- Critics allege that he had stoked fears over India’s security, claimed credit for the performance of the armed forces and implicitly underscored that his party stands for the religious majority.
- It was only after the matter reached the Supreme Court that the three-member EC began to dispose of the complaints.
- Experts opine that what is disconcerting is the EC’s finding that none of his remarks touching on the role of the armed forces under his rule violates the directive against the use of the armed forces for political propaganda.
- Further, the fact that some of these decisions were not unanimous, but marked by dissent from one of the Election Commissioners, points to the seriousness of the credibility crisis the institution is facing.
- For instance, a remark Mr. Modi made in Wardha on April 1, 2019 — that Congress president Rahul Gandhi was contesting from a constituency “where the majority community is in a minority” — was deemed innocent, and it took four weeks for the EC to give this clean chit.
- The second one, for a speech at Latur on April 9, 2019. Here, the Prime Minister made a direct appeal to first-time voters that they should dedicate their votes to the Air Force team that struck at Balakot, and the martyrs of Pulwama.
- The technicality the EC used to absolve Mr. Modi was that he did not directly appeal for votes in the name of the armed forces.
- So far the EC has rejected six complaints.
- It is important to note that the prohibition against the use of the armed forces in election propaganda is to underscore their apolitical nature and to deny ruling parties the opportunity to project their performance as their own achievements.
- Yet, the EC has decided that none of the references to air strikes, the nuclear option and dealing with Pakistan attracted the bar under the MCC.
- Critics point out that it is difficult not to speculate that had the same remarks been made by other candidates, they may have attracted a ban on campaigning for a period.
- The EC has so far retained its well-founded reputation, although there have been occasional complaints in the past that questioned its impartiality.
- However, it is unfortunate that this reputation for independence and even-handedness is starkly under question in this election.
Appointments and removal:
- Experts opine that the root of the problem lies in the flawed system of appointment of Election Commissioners.
- They are appointed unilaterally by the government of the day.
- There has been a demand for de-politicising appointments through a broad-based consultation, as is done in other countries.
- The uncertainty of elevation by seniority makes them vulnerable to government pressure.
- The government can control a defiant CEC through the majority voting power of the two Election Commissioners.
- In its 255th Report, the Law Commission of India recommended a collegium system for appointing Election Commissioners.
- Political stalwarts such as L.K. Advani and former CECs B.B. Tandon, N. Gopalaswami and
- Y. Quraishi supported the idea even when in office. However, successive ruling dispensations have ducked the issue, not wanting to let go of their power. It is obvious that political and electoral interests take precedence over national interest.
- A public interest litigation was also filed in the Supreme Court in 2018 on the matter. This has been referred to a Constitution Bench.
- Experts feel that on issues of such vital importance, even the Supreme Court, which is described as the guardian angel of democracy, has to act urgently. If democracy is derailed, its future too would be in jeopardy.
- Apart from the manner of appointment, the provision for the removal of Election Commissioners also needs correction.
- At present, only the CEC is protected from being removed (except through impeachment).
- One has to remember that the Constitution enabled protection to the CEC as it was a one-man Commission initially. This must now be extended to other Commissioners, who were added in 1993, as they collectively represent the EC.
- In the rich history of democratic India, all institutions of the state have come under pressure at one point or another. But the strength and credibility of an institution is tested when it buckles under political influence.
- It is unfortunate that the topic of debate now is the EC rather than the appalling and unconstitutional conduct of our leaders.
- Over 40 electoral reforms remain pending for two decades.
- While it seems futile to have any hope from the political leadership, it is imperative that the EC asserts the ample authority that it already possesses constitutionally.
- It has the full support of the Supreme Court. It must act tough. This is not a mere question of its discretion, but a constitutional duty. Governments come and go, but the reputation of the EC stays for good.