ECI the most powerful or not?

Anil Anand

“Even advisories for senior leaders, is good enough because these lead to a lot of naming and shaming, which is effective. To say that the ECI is toothless in ensuring that the MCC [Model Code of Conduct] is followed is wrong. It probably needs a little more will power to act strongly, particularly against the ruling party, because the ruling party always has an advantage, which has to be neutralised. I think the EC has enough teeth. Just polite advice to the Prime Minister is enough to cause ripples. To underestimate the power of advisories is wrong.”
-Ex-Chief Election Commissioner
Dr S Y Qureshi
The Election Commission of India (ECI) is in the midst of self created crisis which it refused to acknowledge under the garb of technical and executive nature of the panel’s decisions and work. The crisis was worsened when Supreme Court had to shake it out of slumber to act on pending complaints against Prime Minister Narendra Modi and BJP president Amit Shah that mostly related to violation of MCC. Even the invocation of usual argument, forwarded from time to time in the past also, about ECI lacking powers to act did not cut any ice with the Apex Court. The ECI had to subsequently act though the action ended up in a clean chit.
Under these circumstances Qureshi’s views hold much significance as these are coming from someone who presided over the ‘Nirvachan Sadan’ and encountered such situations. It is also significant as he is perhaps the only one out of scores of former CECs and Election Commissioners (ECs), who forthrightly expressed his views on the current situation faced by the ECI.
The only silverlining has been the reports trickling out of the ECI headquarters about EC Ashok Lavasa expressing dissent on issues related to clean chit for Modi and Shah in alleged MCC violation complaints. It is another matter the dissent was neither duly registered nor brought in the public domain for the sake of transparency and more importantly credibility of the Commission.
The ECI preferred to maintain a studied silence on the entire controversy till, of late, CEC Sunil Arora thought it fit to break his silence though in a limited manner. So, it would be in the fitness of things to refer to his observation in Economic Times. Arora considered the controversy “highly avoidable” and that he would rely on the “eloquence of silence” until the elections were over. “At this point of time, my considered view is that eloquence of silence is always difficult but far more desirable to see the (election) process is over. “At this point of time, my considered view is that eloquence of silence is always difficult but far more desirable to see the (election) process through, instead of creating ill-timed controversies,” he said.
On the written dissents by Lavasa and why this was not being recorded in Commission orders on MCC complaints, the CEC referred to the ‘executive’ nature of EC decisions.
It is too convenient an argument to bury the principles of transparency and providing level playing fields to ensure free and fair elections and check the possibility of even a doubt creeping in the minds of a particular political party of people at large about the fair-play of poll process.
So how does this process of dissent work in the ECI? The poll panel’s legal division was asked to examine the issue of ‘dissent’ as raised by Lavasa. It studied the Supreme Court orders in this connection and opined that orders on the MCC violations were “executive decisions” in which “there has not been any occasion to incorporate minority decision”.
Lavasa while recording his dissenting views with respect to several recent EC decisions had wanted his observations to be recorded separately and put in the public domain. There is nothing to believe that the dissent could not have been recorded as no legal or constitutional provisions prevent that. There is no harm in changing the past precedent if it was for betterment and adding to the credibility of the election process and subsequently that of the ECI.
It is well known that the ECI enjoys tremendous public trust particularly after 1991and more due to that indomitable ex-CEC T N Seshan. He proved beyond any doubt that optimal use of the available powers was the answer to such challenges and not the excuse of lack of powers. Yes, ECI needs more powers separately and in conjunction with the long standing issue of electoral reforms. It is no one’s case to even remotely suggest that the existing system does not need a relook to make the panel more independent and powerful to keep people’s faith intact in the entire democratic process.
Another issue that is central to entire reforms process and which has been ignored deliberately or otherwise by successive governments relates to the appointment process of CEC and ECs. It is opaque and centralised with government being the sole appointing authority. And there starts the problem despite the fact that majority of the top bureaucrats who governed ‘Nirvachan Sadan’ were above board.
A very serious question has arisen of late as to why a situation should arise whereby ECI had to act only when directed by the Supreme Court. It happened when the Apex Court directed the ECI to act on pending complaints against Modi and BJP president Amit Shah by May 6. The system of checks and balances as enshrined in the Constitution came into play in this case also impelling ECI to act. But this was a preventable situation and the onus lied on the poll panel.
What made Seshan succeed even within the limited power structure was his strong will to use the ECI’s authority and strongly implement whatever powers he had. Unfortunately, after that many occasions have come, the current phase included, when the ECI seemed displaying no will to act and even test the powers of its own advisories issued to alleged violators of the MCC and on some other accounts as well.
As a result the MCC violations, most of the times involving the top leadership of the ruling as well as opposition parties, continue to take place with impunity with none bothered about the poll watchdog the ECI. Some of the violations are serious and use of communal overtones for poll purposes has become a routine.
The story of ECI’s limited-power theory makes it pertinent to brow the source from where it derives its powers and to what levels. The ECI was the creation of the Constitution and its Article 324 stated the superintendence, direction and control of all elections to Parliament, the state legislatures, and the offices of the President and Vice-President shall be vested in the ECI. The Articles have repeated been interpretedly by the courts and the poll panel itself. It is seen as unlimited and unconditional in the matter of holding elections. In laypersons terms the ECI can take any action it deemed fit to ensure conduct of free and fair elections. This in itself provided unlimited powers to it in some sense of the term.
It would be naive not to discuss the limitations which the ECI has within this unlimited power structure. For instance it does not have the power to disqualify the candidates who commit electoral malpractices. Under the current regime it can at best direct the registration of a case against such erring candidates. At the same time the Constitution empowers the ECI to decide whether a candidate has invited disqualification by holding an office of profit or that he or she has been declared an insolvent, or acquired the citizenship of a foreign state.
Since the challenges have grown so is the need to further empower the ECI and bring electoral reforms. But it leaves no space or excuse for the ECI to be seen as inactive and springing into action on the directions of the Supreme Court.