Permanent laws cannot be made in response to transient trends, especially to create a power that is open to abuse. The Election Commission of India’s proposal to the Law Ministry that it be armed with the power to punish for contempt is an unwarranted and poorly thought-out response to some strident accusations of partisan functioning, mainly from political parties that had lost in the electoral arena. With democratic practices evolving over time, even the power to punish for contempt vested in the judiciary has come under question, with many wondering whether this relic of a bygone age should be retained. Even superior courts, empowered to act under the Contempt of Courts Act, 1971, are often advised to use it only sparingly. Against this backdrop, for a multi-member Election Commission, which enjoys a high degree of public confidence and a reputation for impartiality, to ask that it be clothed with the powers of a high court to punish both civil and criminal contempt is a travesty of our open and democratic system. Civil contempt pertains to wilful disobedience of court orders, and giving the ECI the power to enforce its orders may be an idea worth debating. However, it will be very harmful to free speech and fair criticism if the ECI is given the power to punish for criminal contempt on grounds that something had “scandalised” it or tended to lower its authority — a vague and subjective provision that should have no place in contempt law. It is a matter of concern that the ECI appears to be preparing the ground to use its power to curtail free speech; its letter refers to some parties “taking advantage of the right to freedom of expression” to question the conduct of elections.
There is a marked difference between the judiciary and the Election Commission. Judges have a tradition of not responding publicly to criticism. As Lord Denning observed in 1968, they “cannot enter into public controversy”. The ECI, on the other hand, responds robustly as and when allegations about the conduct of elections surface. There is no reason to believe that public confidence in the ECI will be shaken or its superintendence, direction and control over the election process undermined by criticism, however tendentious or calumnious it may be. It is true that parties have made unfair accusations about the conduct of elections, or more accurately, about the outcome of elections that went against them. The Aam Aadmi Party has made it a sort of mission to run down the electronic voting system. Not stopping with scepticism of the claim that the electronic voting machines are invulnerable, it has alleged ECI members are politically aligned to the ruling party at the Centre. However, it cannot be forgotten that reforms such as the introduction of a verifiable paper trail came about only because somebody voiced criticism and suspicion. Throttling criticism in the name of punishing contempt will only cut off feedback.
