The NDA swept the 2019 elections giving a historic win to the Prime Minister. The Congress was unable to maintain its resurgence of December 2018. The Congress lost the elections and the Election Commission suffered a huge loss of its credibility. Its image has been severely tarnished. During the same period the Supreme Court of India that made us so proud also suffered due functioning of the Chief Justice of India in a non transparent manner as administrative head. It is instances of functioning in an opaque manner that leads to decline in reputation and public trust.
Envisioned as a independent body to conduct free and fair elections, Chief Election Commissioner and the Election Commission of India (ECI) were insulated from the political executive. The CEC enjoys protection on par with the judges of the SC. A body enjoined to conduct free and fair elections must act in a manner that the people repose faith and confidence. The election commission has a long and honourable record of its credibility in holding elections despite enormous challenges posed by sheer complexity of our country.
At 2019 polls, the ECI has failed to keep up to the expectations of the society. The independence, fairness, impartiality and competence of the ECI is questioned thereby shaking public confidence in ECI in securing the robustness of our democracy. Sixty-six ex-bureaucrats wrote to the president complaining of ECI suffering from credibility crises endangering the integrity of the electoral process. The poll monitor is seen as losing its sheen and its power over parties and candidates.
The reputation of the ECI built over so many decades lies in shambles. Any institution given power and authority of decision making must like Caesar’s wife be above suspicion. Election commissioner Ashok Lavasa dissented on the clean chit given by the ECI to PM Narendra Modi and the BJP chief Amit Shah in matters of violation of Model Code of Conduct (MMC). The question whether the ECI could ignore the dissent of one of its members and give the decisions based upon the majority view ignoring the dissent shook the foundation of the Election Commission built over decades.
CEC Sunil Arora claimed that orders on violation of MCC are not quasi judicial for reasons or dissent to be recorded. TS Krishnamurthy of former CEC stated ‘I do not see any reason why dissent in orders over model code of conduct cannot be recorded’. He states the commission could have been given reasons whenever they take a view and if an election commissioner wishes to dissent it is fair to record such a dissent.
That the BJP, NDA and PM Narendra Modi made mincemeat of the opposition cannot absolve the commission of actions of omission and commission. The EC’s reputation and credibility can be enhanced only by transparent functioning and all decisions and orders must be above board.
In TN Sheshan versus Union of India, the Hon’ble Supreme Court held ‘the concept of plurality is writ large on the face of Article 324, clause (2) whereof clearly envisaged a multimember election commission comprising of the CEC and one of more ECs’. The Supreme Court had held that the CEC must conduct himself at the meetings chaired by him in a manner that he is able to build the confidence of his colleagues on the commission and carry them with him. The court had clearly opined ‘… the functions of the election commission are essential administrative but there are certain adjudicative and legislative functions as well…’. Refusal to record a dissenting opinion is like making a commissioner decorative and lame duck.
The functioning of the election commission of India in the matter of VVPAT confirmation as demanded by 21 opposition parties, inaction over MCC violations complaints the orders letting off the PM, BJP chief and finding faults with lower level leaders, and closing electioneering in West Bengal after PM’s rallies were over have tainted the ECI.
The perception that the ECI was biased may not have an element of truth but the way Ashok Lavasa’s dissent was ignored brought the ECI under a cloud. It is on such acts that the ECI got its image tarnished. In the era of social media which amplifies all rumours, even false and outrageous, it is only imperative that the ECI’s actions raise no suspicion.
The five years of the NDA government saw subversion of institutions. Educational and cultural bodies fell by the way side. Even RBI was not spared. The highest court also got its share of fall. The election commission is generally out of sight except at election time when it plays a crucial role. It is tested at that time. The way it functions during that period, goes to establish its credibility.
The legacy of JM Lyndoh who stood up to the then Gujarat CM and TN Sheshan (referred to as bulldog) who gave teeth to the election commission like never before deserves to be restored. The way appointments are made to ECI could restore reputation and instill confidence of the citizens. ECI must be independent and untainted of govt control. The present appointment procedure the ECs via the cabinet does not inspire any confidence. Like the director of CBI the ECs also must be appointed by the high powered committee consisting of the PM, CJI and the leader of opposition.
The MCC which is only a ‘pious’ code requires to be made statutory with punitive powers. If level playing field is to be achieved, the electoral bonds cannot be secretive. Failure in not taking immediate steps to restore the institutional integrity of ECI shall harm democratic process and the country itself.
(The writer is practising advocate, senior faculty in law and political analyst)
