Another round of elections and the Central Election Commission (CEC) finds itself as a fall guy.
The acrimonious West Bengal polls have every flavour of the season including violence, which is an antithesis of the idea of parliamentary democracy. The Election Commission of India (ECI) has huge resources and powers to supervise the polls, but lacks the spine and a will to act as an impartial observer. Instead, it acts more like an observer, often reacting to the events and trying to do a balancing act, instead of a spontaneous call of conscience seeped in propriety.
Clueless Third Umpire
The ECI has a constitutional duty to act as a referee, and has all powers to exercise. But the three-member CEC appears like a listless and careless third empire who occasionally wakes up from deep slumber at the prodding of social and mainstream media to make its presence felt.
What is more glaring is the ECI’s method of punishment.
It barred West Bengal Chief Minister and Trinamool Congress (TMC) leader Mamata Banerjee from campaigning for 24 hours, but Banerjee became a more effective campaigner sitting at a dharna to protest against the ECI. The ECI could have issued a media advisory, prohibiting media coverage of the banned politician in all forms for the day.
Similarly, during the 2019 Lok Sabha polls, the ECI ‘penalised’ Uttar Pradesh Chief Minister Yogi Adityanath for raising a bogey of ‘Bajrang Bali versus Hazrat Ali’. Next, the ECI saw Adityanath’s image beaming across TV news channels chanting Hanuman Chalisa during the supposedly ban period.
Political leaders, mainly in the Opposition, accuse the ECI of being proactive against them and acting against the ruling coalition under public outcry. The action against Bengal BJP chief Dilip Ghosh and MP Rahul Sinha is a pointer. It acted against the BJP duo after the TMC filed a complaint with the ECI seeking legal action against them for their comments.
Toxic campaign is not alone where the ECI is seen as a helpless, mute spectator. The government of the day has gone about conducting income tax raids on many Opposition leaders in West Bengal and Tamil Nadu, and individuals considered sympathetic to them.
The ECI inaction is in sharp contrast to its assertiveness in 2014 when it had recommended postponing the government’s policy decisions related to natural gas pricing and notifying ecologically-sensitive areas in the Western Ghats. The ECI then invoked the Model Code of Conduct (MCC).
As I tried to explain in this 2019 Moneycontrol article, the MCC, mentioned in the Article 324 of the Constitution, is a set of guidelines issued by the ECI to regulate political parties and candidates prior to elections, to ensure free and fair elections.
Even a cursory look at the recent four phases of electioneering would show that most of the provisions of the MCC were followed. There was no semblance of any MCC anywhere, be it among the Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA), among Congress-led United Progressive Alliance (UPA) or among regional parties.
Another challenge the ECI faces is in forcing the political parties to accept pruning of ongoing West Bengal assembly polls. In the wake of aggressive COVID-19 second wave, the remaining four phases should be reduced to two and completed by April 22. The poll results date should also be advanced to April 25.
The ECI needs to be made broad-based, accountable and transparent.
It may be recalled that the Dinesh Goswami Committee on Electoral Reforms in 1990 had suggestions that members of the ECI should be selected by a panel consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the Lok Sabha. In fact, a Bill was introduced by the Chandrashekar government where the chief election commissioner was to be appointed by the President of India, in consultation with the Chairman of the Rajya Sabha, Speaker of the Lok Sabha and the Leader of the Opposition in the Lok Sabha. Another feature of the Bill had stipulated that the chief election commissioner would be part of a consultation process in the appointment of two other election commissioners.
It’s strange that today even after the BJP has a full majority in Parliament, the re-introduction of the Bill has not been contemplated.
Since then, several retired CECs have been pushing to make the selection of election commissioners more democratic and transparent. They want the chief election commissioner and the election commissioners to be appointed through a collegium system. The argument is that such a process would bring more credibility and protect the institution from the criticism that they are mere appointees of the government of the day.
The year 1993 saw hostility between Prime Minister PV Narasimha Rao and Chief Election Commissioner TN Seshan, who was until then heading a single-member ECI. Seshan had countermanded an assembly election in Tamil Nadu on grounds that he was not given adequate central forces during the polls. Rao initially dithered and then brought in an ordinance to make the ECI a three-member body where any two could give a majority view. Describing the sequence of events, Seshan said, “On October 1, 1993, they [Rao government] waited for me to leave town, and landed two gentlemen in my office. They passed an ordinance, saying that all decisions will be taken by majority and landed those two donkeys in my office. The donkeys came and spoke to me viciously. So, do you understand the build-up of hostility?”
Old hands in Nirvachan Sadan also favour induction of a retired Supreme Court judge in the CEC. There is a merit in it as the ECI performs several important functions which are quasi-judicial in nature, such as dealing with the crucial issue of the disqualifications of MPs and MLAs, petitions and interpretation of rules in the Representation of Peoples Act etc.
The idea of the ECI’s decisions getting overturned regularly is not healthy. Often, the ECI’s opinions are binding on the President and the Governors, therefore, there is a greater need for legally sound advice.