ECI’s credibility undermined

MG Devasahayam

Commenting on the failure of the Election Commission of India (ECI) to declare the election schedule of Gujarat along with that for Himachal Pradesh, The Tribune editorial has this to say: "Whatever be the election commission's calculations, the Nirvachan Sadan's institutional prestige and reputation stand somewhat diminished."

According to former Chief Election Commissioner (CEC) SY Quraishi, this act of the ECI has created a "ground of suspicion" as Prime Minister Narendra Modi is expected to visit Gujarat on October 16 to address a rally wherein he is likely to shower 'goodies' on the state's voters. 

I would go further to say that this episode has cast a shadow on the very credibility of ECI. 

EC’s mandate

The Constitution of India mandates the ECI with the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament, state legislatures as well as president and vice-president. In the Mohinder Singh Gill vs Chief Election Commissioner (1978. 2 SCR-272) case, the Supreme Court ruled that Article 324 is a reservoir of power to act for the avowed purpose of pushing forward a free and fair election with expedition…." The commission shall be responsible for the rule of law, act bona fide and be amenable to the norms of natural justice insofor as conformance to such canons can reasonably and realistically be required of it as fair play-in-action in a most important area of constitutional order, viz, elections." In a catena of cases, the apex court has observed that fair and free elections are a basic feature of the Constitution.  

In order to perform such an exalted role, the ECI has been given the same status as that of the Supreme Court and the election commissioners are on a par with the apex court judges and the CEC enjoys the same constitutional protection. It is, therefore, imperative on the part of ECI to ensure electoral integrity by all means and not remain tied to the apron strings of the government or succumb to the ruling party wielding the baton.

EC panders to parties

But unfortunately, the ECI has not covered itself with glory on this front and in the conduct of elections it does not consult the people, the real stakeholders and does not implement Article 324 in letter and spirit. Instead, it panders to the political parties, that are only interested in grabbing power by fair or foul means. Elections have become a mere tool to facilitate this.

We saw this glaringly in the Tamil Nadu Election-2016 where money power and freebies were in full flow. The role of money power is described by the ECI in its order rescinding the election in Aravakurichi and Thanjavur assembly constituencies: "Decision is based on the Commission's assessment about the vitiated atmosphere in the constituencies created by the illegal use of money power to allure the electorate by unethical and unlawful means resorted to by the candidates and the parties." This was applicable mutatis mutandis to almost the entire state. 

The ECI's Model Code of Conduct-2014 (MCC) on freebies directs political parties and candidates to "avoid making those promises which are likely to vitiate the purity of the election process or exert undue influence on the voters in exercising their franchise." Also, in the interest of transparency, level playing field and credibility of promises, manifestos should "reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirements for it."  

The election manifesto released by the AIADMK, then headed by J. Jayalalaithaa, on May 5, 2016, just 10 days before the polling date, was in total violation of the Supreme Court judgment and the MCC. The EC did not take any action on these blatant violations except issuing a belated notice, that too on representation from civil society. No further action was taken and post-poll surveys clearly revealed that the massive freebies in the manifesto were the clincher. 

Added to this was the serious matter of the seizure of huge cash of Rs 570 crore at Tiruppur, just two nights before election that had raised suspicion of humungous electoral bribing. A totally unbelievable story was put out that this huge cache of cash moving from Coimbatore to Vizag belonged to the State Bank of India. Grapevine had it that this money belonged to a national party. Since this happened in an election-bound state under the watch of the ECI with severe restrictions on cash movement, it is its responsibility to order investigation and ascertain facts.

But in all this, the action of the ECI has been indifferent and tardy to say the least. Rescinded elections in the Aravakurichi and Thanjavur assembly constituencies were conducted after six months with the very same candidates contesting the elections, with the corrupt ones winning them. On the blatant violation of the MCC in the election manifesto, only mild rebuke was given to the AIADMK whereas the ECI had the powers to suspend or withdraw recognition of that political party under Section 16A of The Election Symbols (Reservation and Allotment) Order, 1968 as amended. As for the cash cache, the ECI passed the buck and the matter was hushed up.

Similar other happenings have dented the credibility of the ECI. 

No law on appointment of ECs

This is so because though the commission represents "We, the people", in actual practice it is under the thumb of the government of the day and by extension, the politicians of the ruling party. The Constitution provides that appointments of the election commissioners (ECs) will be made subject to the provision of an enabling law made in that behalf by Parliament. But till date, there is no such law and appointments are being done through an arbitrary, non-transparent, executive process, as if rewarding a favourite with a post-retirement sinecure. The Supreme Court has recently pointed this out, adding that leaving the appointment wholly in the hands of the political executive is not a sound basis for preserving the independence of the ECI. 

Because the ECs are appointed by the government of the day, it makes the authority feel like a proprietor who expects the appointee to toe the line set by it. While appointments in statutory bodies are made through the collegium system, not doing so for the constitutional posts of EC looks bizarre. The double standards adopted by the ECI vis-à-vis Gujarat elections can be attributed to this severe flaw.

Such a situation cannot be countenanced. The plenary mandate of the ECI requires this constitutional institution to stand independent and autonomous and come down heavily on political parties and candidates who are increasingly turning India's democracy into a farce. The ECI should also regulate the entire funding of political parties and their expenses during elections. Only this will provide a level playing field, which is the essence of free and fair election.

Sooner this is done the better. Only then can the ECI regain is credibility, without which India's democracy would only turn more farcical.

The writer is a former IAS officer