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September 7, 1999


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E-Mail this column to a friend Arvind Lavakare

Time to call the EC's bluff

One of the few sensible statements made by Pramod Mahajan in the last 18 months has been his recent suggestion that the Election Commission's functions be clearly defined under law so that its decisions can be challenged in a court.

The string of fatwas issued by the EC during the ongoing campaigning, added to the standing Model Code of Conduct, has made the EC's functioning resemble that of Tughlaq of a bygone era. One has not counted all the prohibitive fiats the EC has issued this time around, but one wouldn't be surprised if they add up to the "Ten Commandments of Nirvachan Sadan".

Banning the screening of a film documentary on Kargil, prohibiting the country's prime minister from being accompanied by journalists in his air force aircraft, preventing political parties from issuing advertisements on television et al -- these are some diktats that have made front-page news in recent weeks.

However, the most outlandish prophylactic actions of the EC have also been the most inconspicuous. Believe it or not, the EC had the gall a fortnight ago to put on hold the mere constitution of two expert committees -- one to frame a new competition law and another to review the country's existing insolvency law.

With the Andhra Pradesh and Madras high court throwing out the ban on television ads by political parties, the time has come to expose the EC as the non-accountable holy cow of our democracy.

To do that, one must understand that the EC, under T N Seshan first and now under M S Gill, have been taking shelter under Article 324 of our Constitution that nobody, alas, seems to have had the time to grasp, leave alone read.

"Article 324", these two Tughlaqs have proclaimed, "has vested us with plenary powers to ensure free, fair and impartial elections." They have also loud-mouthed the view that "Article 324 gives us all enabling powers to promulgate such directions as we consider necessary to ensure peaceful, fair and free polls reflective of the true choice of the people." (The Election Commission's secretariat's instruction No 437/6/96/PLN-III/7/20 dated January 17, 1996 addressed to all state governments, Union territories and chief electoral officers of those regions).

Article 324 did indeed establish the EC as an autonomous all-India body, free from political or executive influence. Article 324 did indeed establish the EC to ensure "free, fair and impartial elections." But all else is myth and bullshit created by Seshan first and perpetuated now by Gill. After all, "autonomous" is not synonymous with "autocratic" while "free and fair" does not denote fetishism.

Take the concept of "free and fair" elections first. It hardly means the "level playing field" connotation attributed by Seshan and Gill Pvt Ltd. Their logic is something like this: "Some political parties are rich and can afford television advertising while other parties cannot financially afford television advertising; since this is not a level playing field, television advertising during election campaigning should be stopped. QED."

Going by the same illogic, since Sonia Gandhi cannot make extempore election speeches, Sushma Swaraj should also compulsorily read from a prepared text. Another syllogism of this kind would be: "The Gandhi name has a deep-rooted charismatic hold on the illiterate Indian voter's psyche while even the Vajpayee name has no such advantage; ergo, to ensure a level playing field, all the Gandhis should be stopped from contesting elections." Finally, "Since the BJP has the entire Sangh Parivar to help its candidates while the Janata Dal (Secular) has no such manpower, the BJP should not be allowed to contest against the Janata Dal (Secular)."

The real meaning of "free and fair elections" would be apparent from reading any detailed commentary on Indian constitutional law. The essence of that phrase lies in "a cherished privilege of a citizen to participate in the electoral processes that place persons in the seat of power". A few fundamental principles of this 'free and fair" concept are:

  • There is one general electoral roll for every territorial constituency.

  • No person is ineligible for inclusion in the electoral roll on the grounds only of religion, race, caste, sex or any of them.

  • Every citizen of India who is eligible to vote as per law of Parliament is entitled to be registered as a voter on a prescribed date.

  • Nomination procedures and rules for candidates desirous of contesting elections are the same for one and all.

  • The number of polling agents at a voting booth should be identical for all the candidates.

    Then there's the "plenary powers" claimed by the EC under Article 324. A misconception prevails that these "plenary" or absolute powers are not subject to any constraint.

    A Supreme Court judgment of 1984 called the bluff there. In May 1982, during the elections for the Kerala legislative assembly, the electronic voting system was introduced at some booths in one constituency. This was done under EC directives issued under Article 324. After the election, the validity of the electronic system was challenged through an election petition.

    The Supreme Court set aside the election of the successful candidate and ordered re-poll in the booths where the machines had been used. The court ruled that the EC's order directing that ballots be cast using machines lacked jurisdiction. It held the EC could not change the voting system since this matter fell within the domain of Parliament. The court interpreted the word "ballot" used in the Representation of the People Act, 1951 as not including the casting of votes by mechanical process. The court construed Article 324 as conferring only executive, but not legislative, powers on the EC.

    Legislative powers in respect of elections to Parliament and the state legislatures vest in Parliament and no other body, and the EC would come into the picture only if no provision has been made by Parliament in regard to these elections. When Parliament or a state legislature makes any valid law relating to or in connection with elections, the EC has to act in conformity with, not in violation of, such provisions.

    The court disagreed with the contention that the Constitution gives complete power to the EC under Article 324 for the conduct of elections. The Constitution could never have intended to make the EC an apex body to give any direction in respect of the conduct of elections and conferring on it legislative powers, ignoring Parliament altogether.

    The court went on to say where the law is silent, the EC no doubt has the plenary powers under Article 324 to give any direction in respect to the conduct of elections. But when the EC submits a particular direction to the government for approval (as required by the rules), it is not open to the EC to go ahead with the implementation of that direction at "its own sweet will" even though government approval is not given.

    It is because of the above Supreme Court judgment that the Representation of People Act, 1951 was amended by Parliament in 1988 to allow the EC to adopt voting machines, electronic or otherwise, for elections.

    Clearly, the EC's direction to anyone cannot be at "its own sweet will" unsupported by law. Else, Mr Gill might tomorrow ban a voter in a saffron sari from entering the polling booth!

    Lastly, there's that utterly, butterly Model Code of conduct for the Guidance of Political Parties and Candidates. There's one laughable prescription in it that reflects the high horse of morality it seeks to ride. It says, "All political parties and candidates shall refrain from serving or distributing liquor on polling day and during the 24 preceding it." My, my, not even a chhota peg for Vajpayee on election eve at Advani's home!

    That particular clause of the ode may well have emanated from Mahatma Gandhi's pen, but the Model Code was actually formulated much, much later. In his letter printed in The Hindu of August 20, 1999, former EC secretary K P G Kutty says the code was evolved in 1968. However, according to a document titled A Compendium of Election Commission's Orders on Model Code of Conduct issued by the Maharashtra Chief Electoral Officer to candidates for the current elections, the Model Code was formulated in January 1991. In black and white, under the signature of T N Seshan, the then Chief Election Commissioner of India.

    Although the newspaper has not intimated any correction in Kutty's letter till the moment of writing this, the 1991 date seems the authentic one, considering that all CECs, till the advent of Seshan, Tughlaq I, were unobtrusive and non-egoistic men, content with working more and shouting less.

    Anyway, the vital issue of the Model Code is that, as Kutty confessed in his above letter, "It is a gentlemen's agreement and has no legal teeth but has only a persuasive force." Even Gill, Tughlaq II, has conceded as much a couple of times on television, albeit sheepishly. How comically ironic therefore that our entire electioneering lot has seemed more frightened of the Model Code than of the India Penal Code.

    But that's not the only irony. In its earlier referred letter of January 17, 1996, the EC had the gumption to warn that "gross infringement of the Model Code... will be visited with grave consequences as considered appropriate by the Commission."

    However the tragi-comic irony of this Model Code is what is stated in an article published in The Hindu of August 24, 1999. The author of that piece was Naresh Gupta, currently chief electoral officer and secretary to the Tamil Nadu government.

    Gupta says "if the [Election] Commission is satisfied.... that a political party... has shown or is showing defiance... of the Model Code of Conduct.... [the EC] may... either suspend.... or withdraw recognition of such party."

    Gupta avers the action he talks of will be as per paragraph 16 A of the Election Symbols (Reservation and Allotment) Order, 1968. How the dickens can there be a punitive link between a statutory Order on Election Symbols and a Model Code of Conduct for elections? We should be enlightened on that by Tughlaq I or Tughlaq II. Or even by the "esteemed" newspaper that published Gupta's article.

    Meanwhile, if Naresh Gupta can function as Gill's chief electoral officer, why not Arvind Lavakare or Monica Lewinsky? Manohar Gill or Pramod Mahajan should tell us that. Or even Sonia Gandhi.

    Tailpiece: If M S Gill was peeved with L K Advani until his personal security status was restored from Y category to Super Z category, G V Krishnamurthy, the other election commissioner, ought to be peeved with the home minister for being denied a level playing field.

    That is probably why the hurt GVK circulates a personal bio-data of nearly 2,000 words among hosts who invite him for delivering lectures. And never mind if that fact leaves Gill without a level playing field.

    Arvind Lavakare

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