Subverting the Election Commission

The subversion of Constitutional bodies is proceeding apace. Nothing exemplifies this more than what has happened to the Election Commission of India (EC).

The EC’s stand on the elections for three vacant seats from Kerala in the Rajya Sabha has brought out the stark fact that the Commission is bending to the will of the government. Nothing else can explain the strange behavior of the Commission regarding what is a routine election for filling up vacancies to the Upper House from a state.

The EC first announced that elections would be held on April 12. But a week later, it announced that it was putting the election process in abeyance to consider a reference sent by the Ministry for Law and Justice.  The Secretary of the Kerala Legislative Assembly and a CPI(M) MLA approached the Kerala High Court challenging the decision of the EC to put the election in abeyance. They argued that the right of MLAs of the existing assembly cannot be curbed. The EC counsel had first assured the court that the election would be held before the expiry of the tenure of the members, but retracted when asked to put it on record.  The EC, in a subsequent hearing, went on record that the Ministry for Law and Justice had in a letter advised that the election need not be held during the term of the present Assembly as the people had voted for a new Assembly on April 6.  The EC admitted on record that it had accepted this advice. The High Court rejected this stand and directed the EC to hold the election before the results are declared on May 2, thus foiling the Modi government’s bid to deprive the LDF of getting two of the three seats.

This episode showed how far the EC could go in complying with the government’s wishes.

The accommodation to the Executive’s requirements by the EC began earlier.  One such decision taken by the EC concerned the holding of the Jammu & Kashmir Assembly elections along with the Lok Sabha elections in April-May 2019. The EC decided not to hold the Assembly election along with the Lok Sabha election in J&K. The state had been under President’s rule since November 2018.  It was, therefore, natural to expect the Assembly polls to be held along with the Lok Sabha election in the state. The Commission cited security issues for not holding the Assembly election. This proved fateful.

Another instance is the EC’s stand on the electoral bond scheme. In 2017, when the electoral bond scheme was formulated by the government, the EC on being asked gave its opinion in writing, expressing strong reservations.  It warned of “serious repercussions/impact on the transparency aspect of political finance/funding of political parties”.  The EC had also objected to the amendment to the law allowing foreign companies operating in India to contribute funds to political parties, including through electoral bonds.

However, last month, when a petition came up before the Supreme Court for a stay on the issue of another tranche of bonds in the beginning of April, the EC opposed a stay and stated that they are not opposed to electoral bonds but only  want transparency; the issue of transparency can be dealt with later when the main petitions are heard.  Here again, the EC resiled from its initial  stand of strong objections to the scheme.

In the ongoing eight-phase West Bengal Assembly elections too, the conduct of the EC has been controversial. In the Sitalkuchi firing by the CISF personnel outside the polling booth that  led to four young men being killed, the EC, based on a misleading report submitted by its state observers, has exonerated the Central forces. The Commission did not care to ascertain what actually happened on the ground.

The BJP, as is its wont, is conducting a strident and inflammatory communal campaign.  As it happened during the Lok Sabha election of 2019, none of the top BJP leadership have been booked for violation of the Model Code of Conduct (MCC).  This is in contrast to the 24-hour ban on campaigning by Mamata Banerjee whose speeches were found to be violative of the MCC.

The prerequisite for a fair and free election is an impartial EC which can ensure a level playing field for all parties, deal firmly with offenders and resist Executive interference at all levels.  The Commission, which had set a creditable record in this matter over the decades, is now in danger of losing that reputation.

The “taming” of the Commission is following the by now well-known modus operandi of the government. During the course of the 2019 Lok Sabha election, one of the Election Commissioners, Ashok Lavasa, had displayed independent thinking. He had recorded his dissent at least five times on decisions taken by the Commission as a whole in exonerating Narendra Modi and Amit Shah of violations of the MCC.  Consequences followed. Soon after,  Lavasa’s wife, son and sister – all came under income tax probes which were well publicised in the media.  It was reported that Lavasa’s own assets were being looked into.  Lavasa resigned as Commissioner in July, 2020 after accepting a position in the Asian Development Bank.

Sunil Arora has just retired as the Chief Election Commissioner. If Lavasa had not stepped down, he would have become the CEC. This brings up the crucial weakness in the functioning of the Commission as an independent, autonomous Constitutional body. The CEC and other Commissioners are selected and appointed by the government of the day. It is fully in the hands of the Executive.  Since the beginning, civil servants or those retiring from service have been appointed as Commissioners.  It is easier to get  civil servants who are conformist and pliant to the top Executive.  The current regime has been working systematically to bring all the Constitutional bodies under its control.  The EC is in danger of becoming an extension of the government.

The Election Commission is constitutionally tasked under Article 324 of the Constitution with the “superintendence, direction and control” of the conduct of elections to Parliament and state legislatures.  If the EC is compromised, it spells peril for parliamentary democracy itself.

It is a vital necessity to free the EC from the clutches of the government. For that, the first step to be taken is to ensure that the selection and appointment of Election Commissioners are not the sole prerogative of the Executive.  There has to be a broad-based committee or collegium to select Commissioners which should  include not only the Executive but top judiciary, leader of the opposition and noted jurists.   The eligibility to be a Commissioner cannot be confined to civil servants;  there can be eminent jurists and distinguished personalities from other professions.

To preserve the integrity of the Commission, those retiring as CEC or Commissioners should be barred from accepting any government-sponsored posts.  Electoral reforms are urgently required for curbing the use of money power, defections and making the electoral system more representative.  But such reforms should begin with reform of the Election Commission itself.