The Election Commission of India (EC) is a formidable institution which has led the world in electoral efficiency since its inception. But in the 2019 general election, it has come under the scanner like never before in the wake of incidents involving a breach of the Model Code of Conduct, particularly those by the ruling party. On April 8, in a letter to the President of India, a group of retired bureaucrats and diplomats, in the context of recent incidents, expressed concern over the EC’s “weak kneed conduct” and the institution “suffering from a crisis of credibility today”.
Points of concern
The letter described the Prime Minister’s March 27 announcement, of India’s first anti-satellite (ASAT) test, as a “serious breach of propriety [which] amounts to giving unfair publicity to the party in power”. Questions were also raised over the launch of NaMo TV without licence, and a biopic on the life of the Prime Minister which was scheduled for release on April 11, when elections commenced. The group also requested the EC to “issue directions to withhold the release of all biopics and documentaries on any political personages through any media mechanism until the conclusion of the electoral process”. They asserted that the release of such propaganda amounted to free publicity, and hence should be debited as election expenditure in the name of the candidate in question. The same standards should also apply to other such propaganda, an example being a web series titled “Modi: A Common Man’s Journey”.
Other important issues highlighted in the letter included transfers of top officials, voter verifiable paper audit trail (VVPAT) audits, violations of the MCC by Rajasthan Governor Kalyan Singh (for which the group has requested his removal on account of “grave misdemeanour”) and Uttar Pradesh Chief Minister Yogi Adityanath (in his speech he referred to the armed forces as the army of Narendra Modi), and also corrosion of the political discourse in general.
Needless to say, the questions being raised about the credibility of the EC are a cause for worry. It is, however, not the first time that the conduct of the commission has been questioned.
At the core
To my mind, the genesis of the problem lies in the flawed system of appointment of election commissioners, who are appointed unilaterally by the government of the day. This debate can be settled once and for all by depoliticising appointments through a broad-based consultation, as in other countries.
In its 255th report, the Law Commission recommended a collegium, consisting of the Prime Minister, the Leader of the Opposition and the Chief Justice of India. Political stalwarts such as L.K. Advani, and former Chief Election Commissioners including B.B. Tandon, N. Gopalaswami and me supported the idea in the past even when in office. But 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 the national interest.
A public interest litigation was also filed in the Supreme Court in late 2018 calling for a “fair, just and transparent process of selection by constituting a neutral and independent Collegium/selection committee”. The matter has been referred to a constitution bench. It’s not a routine matter. On issues of such vital importance, even the Supreme Court — which I have always described as the guardian angel of democracy — has to act with utmost urgency. If democracy is derailed, its future too would be in jeopardy.
Besides the manner of appointment, the system of removal of Election Commissioners also needs correction. Only the Chief Election Commissioner (CEC) is protected from being removed except through impeachment. The other two commissioners having equal voting power in the functioning of the EC can outvote the CEC 10 times a day. 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 commissioners. One has to remember that the Constitution enabled protection to the CEC as it was a one-man commission initially. This must now be extend to other commissioners, who were added in 1993, as they collectively represent the EC.
The EC’s reputation also suffers when it is unable to tame recalcitrant political parties, especially the ruling party. This is because despite being the registering authority under Section 29A of the Representation of the People Act, 1951, it has no power to de-register them even for the gravest of violations. The EC has been seeking the power to de-register political parties, among many other reforms, which the EC has been wanting.
The reform was first suggested by the CEC in 1998 and reiterated several times. The EC also submitted an affidavit to the Supreme Court last February saying it wanted to be empowered “to de-register a political party, particularly in view of its constitutional mandate”.
Elections are the bedrock of democracy and the EC’s credibility is central to democratic legitimacy. Hence, the guardian of elections itself needs urgent institutional safeguards to protect its autonomy. It is time that action is taken to depoliticise constitutional appointments and the EC empowered to de-register parties for electoral misconduct. It is a step needed towards restoring all-important public faith in the institution.
While these reforms may continue to be debated, nothing stops the EC from asserting the ample authority it has under the Constitution and being tough. It’s not their discretion but the constitutional mandate. It did not need a reminder or a nudge from the Supreme Court.
S.Y. Quraishi is a former Chief Election Commissioner of India