Disclosing dissent: on EC’s decision to not record split opinions
- The rejection of the demand of one of the Election Commissioners that dissenting opinions be recorded in the orders passed by the three-member Election Commission on complaints of violations of the Model Code of Conduct may be technically and legally right.
The EC being at the receiving end of much criticism:
- The EC has been widely criticised for giving a series of ‘clean chits’ to the PM, despite some questionable remarks that appeared to solicit votes in the name of the armed forces. Experts opine that such criticism was warranted.
- Added to the widespread unease was the unexplained delay of several weeks in disposing of complaints against Mr. Modi.
- It is in this context that Mr. Lavasa’s dissenting opinion may have been relevant enough to merit inclusion in the EC’s orders.
- After all, the public is aware of the allegedly offending actions and remarks, and is entitled to be informed if the decision was not unanimous.
- As a matter of fact, in this hotly contested election, one in which the level of discourse was abysmally low, the onus on the poll panel to maintain a level-playing field and enforce the election code was quite high.
- Making public a dissent in the final order would have deepened the popular understanding of the issues in play.
What does the law say?
- The law requires the multi-member EC to transact business unanimously as far as possible — and where there is a difference of opinion, by majority.
- Therefore, there is nothing wrong if decisions are made by a 2:1 ratio.
- The apparent justification for excluding any dissent from the final order, but merely recording it in the file, is that the practice of including dissent is limited to quasi-judicial matters such as allotment of symbols.
- An important question arises: should recording of a dissenting opinion be based on such a distinction?
- A more appropriate distinction would be between decisions that require reasoning — absolving the Prime Minister of an election code violation surely ought to be one — and administrative matters that need to be resolved with dispatch.
- Experts opine that if members have specific reasons for deciding for or against a particular course of action, there would surely be no harm in spelling out their respective positions.
- It would be unfortunate indeed if Mr. Lavasa stays away from meetings concerning violations of the Model Code of Conduct.
- However, as he has taken up the issue through as many as three letters, it is reasonable to infer that there is some basis for his grievance.
- At a time when the institution’s reputation is being undermined by sustained criticism, the EC should not shy away from making public any difference of opinion within.
- Finally, it would be unfortunate if the majority in the EC were to be afraid of any public reaction that may result from disclosure of a split opinion.