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COMMITTED TO FREEDOM AND FAIRNESS

It is election time in India and, unsurprisingly, a few unpleasant and totally avoidable confrontations in parts of the country between political figures and the Election Commission of India have charged the poll climate further. It seems that some people are more adept in rendering lip service to the Constitution of India without getting into the nitty-gritty thereof. Hence, this citizen is constrained to bring to the kind notice of all concerned the salient features pertaining to the role, duty and responsibility of the EC as stipulated in the Constitution. Thus, according to Article 324 of the Constitution: “The superintendence, direction and control... and the conduct of, all elections to Parliament... shall be vested in a Commission (referred to in this Constitution as the Election Commission).” Although from the beginning the EC consisted of the chief election commissioner only, it was the Congress government, just a few days before the ninth general election, that appointed two more commissioners on October 16, 1989, making it a multi-member commission. Understandably, contemporary critics (perhaps rightly) suspected that this hasty action on the part of the ruling party was initiated in order to undermine the autonomy or independence of the commission through the induction of fresh, pliable members. Appointed in the year 1990, the powerful CEC, the redoubtable T.N. Seshan, had virtually gone on a zealous mission to correct the abuses of a large number of errant politicians of the day.

The National Front government, led by V.P. Singh, however, restored the EC to its status as a single-member institution with effect from January 2, 1990. This continued till the arrival of the Congress government of P.V. Narasimha Rao in June, 1991. On October 1, 1993 the government promulgated an ordinance (subsequently converted into an act) to once again install two commissioners, thereby making it a three-member EC. The government’s action was challenged in the Supreme Court which, however, upheld the validity of the new made act.

The main point to note here, nevertheless, is that the Constitution clearly and categorically provides for an independent body, called the Election Commission. The fact that the provisions for the removal of election commissioners are so difficult and complicated makes them totally free of any executive control when conducting elections, unfettered by any command or order of whichever political party is in power at the time. And that certainly is one of the most remarkable, unique and admirable features of the Constitution of India.

It would further help all present stakeholders of the Indian elections of 2014 to remember that even the British system, from which India had adapted and incorporated so much in the past, has now taken a cue from its former colony to improve the machinery of the election process and procedure as late as in 1983. Thus, unlike in the past when the British House of Commons (equivalent of the Lok Sabha of the Indian Parliament) “claimed as a matter of privilege to determine the question of disputed elections till 1868”, and allowed the courts to decide all election disputes thereafter, the Indian system, from the beginning, had the judiciary in the loop to decide all such disputes relating to elections. And the procedure in the United Kingdom is now regulated by the Representation of the People Act, 1983, followed by the “establishment of the Election Commission” under the Political Parties, Elections and Referendum Act, 2000.

Coming back to India, the three words, “superintendence, direction and control”, vide Kanhaiya Lal Omar versus R.K. Trivedi AIR 1986 Supreme Court 111, empower the EC to act in “contingencies not provided for by law”. These three words are of the widest amplitude, enough to include all powers necessary for the smooth and effective conduct of elections “so that the will of the people may be expressed” (Election Commission of India vs Ashok Kumar, AIR 2000 SC 2979). Again, when the law is silent, the EC may exercise its powers under Article 324, which is a “reservoir of power”, to act for the avowed purpose of conducting free and fair elections. The Supreme Court vide Union of India vs Association for Democratic Reforms AIR 2002 SC 2112, held that “[t]he Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary direction, [the] Commission can fill the vacuum till there is a legislation on the subject.”

Of all powers, privileges and prerogatives of the EC, however, what stands out is the case of Lalji Shukla vs Election Commission of India AIR 2002 Allahabad 73. The Election Commission is a specialized body which is politically neutral and has experience in conducting elections, and ordinarily it is for the Election Commission to decide what would be conducive to a fair election. In this regard, the directive issued by the Election Commission, that those officers who have completed a specific number of years in a particular district may have developed liaisons with the politicians and other influential persons of the district, and hence it would be conducive to ensuring fair election that they should be moved out, was held not ultra vires Article 324 (1) or arbitrary “as it does not discriminate between different officers.” The court refused to interfere.

The above mentioned cases were referred to simply to make a point about the EC’s powers during election times. Hence, anyone challenging the EC without a prima facie case of mala fide or gross violation of basic principles of justice, equity and fair play on the part of the EC is bound to face ridicule. And that unfortunately appears to have occurred owing to the over-enthusiasm, confidence and excitement on the part of a few who thought of getting some mileage out of a confrontation where such a situation simply did not exist.

A few words on ground realities on the basis of this citizen’s experience of six elections in West Bengal, Rajasthan, Manipur, Tamil Nadu, Uttar Pradesh and Kerala. The district officials of the home state are always under pressure (real or imaginary) pertaining to their future postings at the prospect of a change of the political boss. Hence, the fear psychosis more often than not blurs their objective thinking and fair judgment. Hence the main and actual players who could be more fair, objective and unbiased are always election observers who come from outside the state.

So far, there were two types of observers: Indian Administrative Service officers who were concentrating on logistical arrangements, and Indian Revenue Service officers who, owing to their core competence being finance, were keeping vigil on the various types of expenses being incurred by political candidates. Although from all accounts the ‘outsiders’ appear to be doing well, the absence of Seshan is strongly felt even now by all who matter during the elections. There is no doubt that the EC’s present professionalism can be traced back to the man whose very sight or name sent shivers down the spines of the most difficult and desperate of politicians. This is something I have actually seen.