“The track record of the Election Commission in using its powers has been very uneven, at times even bordering on the shocking,” writes Jagdeep Chhokar in the following article. He cites many examples of how the Commission has failed India’s democracy, from its inaction against top leaders when they violate the model code of conduct during elections, to its failure to enforce transparency in political parties’ financial affairs.
Chhokar acknowledges that the Election Commission is under pressure from the government or the ruling party of the day, but he doesn’t offer any solutions to embolden it. The Commission is a permanent constitutional body which already has plenary powers under Article 324.
I have often argued that the Election Commission is meek because it is appointed and controlled by the Prime Minister’s Office. As is the case with almost all Indian executive bodies, the Commission is appointed by the President, as “advised” by the PM. Kuldip Nayar, India’s preeminent political commentator, wrote in 2017 that Election Commissioners are bureaucrats “under the discipline of the Central Government and can be influenced. The government’s influence is inevitable.”
To help solve the problem, S.Y. Quraishi, former Chief Election Commissioner, once suggested that the Leader of the Opposition be included in the appointment process. He also wants the Commissioners to take a constitutional Oath of Office.
A more effective and permanent fix to the Election Commission’s lack of independence would be to take away the PMO’s exclusive control. Along the lines of the U.S. system, the Commissioners should be nominated by the PM but approved by Parliament. The Rajya Sabha can be used for this purpose, like the U.S. Senate.
-Bhanu DhamijaFollow @bhanudhamija
[Excerpts of article published on the Scroll.in website on 06 April 2022.]
India’s weakening democracy needs urgent electoral reforms
As many processes that go into the conduct of elections have begun to be undermined, it is time to put the Election Commission back on the rails and fix this.
By Jagdeep S Chhokar
It is a coincidence that a festival of democracy is currently on in five states of India as this essay is being written. It is not a surprise that a country that is sometimes called “the land of festivals” has also been treating a critical component of a democratic society as a festival. While there can be no objection to treating an election as a festival, if we treat elections merely as fun festivals, this may have serious implications for democracy in the country. …
Justice VR Krishna Iyer, while writing the judgment in Mohinder Singh Gill vs the Chief Election Commissioner in 1978, described democracy as “a continual participative operation, not a cataclysmic, periodic exercise”. This is what should inform our understanding of elections. It is necessary for people at large, voters included, to be sensitised about how electoral activity is an ongoing affair, and it would be useful if they were on the lookout for such activity because it could have a subtle and unobtrusive impact on them. …
The Election Commission has fallen short of the standards that had come to be expected of it.
Election Commission’s role
The Election Commission has been described as the “super-authority” for the conduct of elections, presumably based on the plenary power that Article 324 bestows on it. The expression “superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections” has been given a very wide interpretation.
The Election Commission, therefore, is the central character and has the most critical role in the entire process. Actions of the Election Commission are most keenly observed by all the other characters and any and all variations are noted and commented on.
Given that the Election Commission has a role akin to an umpire in cricket, all players (in this case, candidates and political parties) expect the Election Commission to be fair and neutral. This implies that the Election Commission would apply all rules, norms, and laws to the participants in a consistent and transparent way. Yet, a number of instances of doubtful or seemingly inconsistent actions by the Election Commission in the 2019 election to the Lok Sabha have been mentioned in Chhokar (2022).
Some such debatable issues are visible in the ongoing elections to five state assemblies. Given that the Election Commission has laid down certain conditions in the way election campaigns can be conducted in view of Covid-19 infections, candidates, major leaders and star campaigners of political parties tend to push these to their limits. These are situations where the Election Commission has to make delicate and nuanced calls. It is in such situations that the Election Commission does not only have to be neutral but also seen to be neutral.
Regrettably, a perception seems to have developed in the past few years that the Election Commission has fallen short of the standards that had come to be expected of it.
It is impossible to identify all possible reasons for the erratic behaviour of the Election Commission,
Party in power
Arguably, the trickiest situation is when some of the top leaders of the party in power in the state and at the centre violate the restrictions laid down in the model code of conduct or by the Election Commission in obvious ways.
The situation gets even more complex when such political leaders also happen to occupy some of the highest executive positions. It causes grave misgivings and consternation when the Election Commission appears to be treating such persons with kid gloves while, at the same time, reading the riot act to lesser leaders and politicians. There were a large number of such instances in the 2019 Lok Sabha election, which have been documented in Devasahayam (2022).
In the ongoing Assembly elections in five states, videos of the top leaders of the party in power in the state as well as at the centre conducting door-to-door campaigns, surrounded by large unmasked crowds that show no signs of maintaining a physical distance, have been widely seen on TV news channels and on YouTube. This appears to be an obvious and large-scale violation of the Covid-19 guidelines issued by the Election Commission. However, there is no information about the Election Commission having taken any action on this.
While it is impossible to identify all possible reasons for the erratic behaviour of the Election Commission, based on the patterns of behaviour, two possibilities seem to emerge.. One is that the Election Commission does not have the requisite power to discipline violators of the process that has been laid down, and the other is that the Election Commission is ambivalent, or even hesitant, about using its powers. …
In the last few years, the reputation of the Election Commission has, unfortunately, taken a beating.
Election Commission’s ambivalence
The track record of the Election Commission in using its powers has been very uneven, at times even bordering on the shocking (Chhokar, 2020). Devasahayam (2022) contains a detailed description of what transpired during the 2019 Lok Sabha election (Devasahayam, 2022). Rather than trying to summarise a few issues, what might be more appropriate is to reproduce part of the observations of a person who held the position of the Chief Election Commissioner for almost two full years (July 30, 2010, to June 10, 2012).
In the last few years, the reputation of the Election Commission has, unfortunately, taken a beating. To pretend that all is well and nothing has happened would be worse than ostrich-like. There is absolutely no doubt that the organisation that was highly respected for its neutrality and independence has come in for sharp criticism and rebuke. And not only from the citizens but even from the higher judiciary.
Not just the media, even former President Pranab Mukherjee commented, “There is some doubt about the functioning of the Election Commission during these elections.”
“There should be a different method of choosing the members of the Commission,” Mukherjee said. “It is imperative that the Election Commission asserts the ample authority that it already possesses constitutionally. It has the full support of the Supreme Court.”
“It must act tough,” Mukherjee said. “This is not a mere question of its discretion, but a constitutional duty. Governments come and go, but the reputation of the Election Commission stays for good.” These were the wise words from the country’s most experienced and knowledgeable political leader.
In an unprecedented and extraordinary development, even one of the three serving Election Commissioners registered his disapproval for the way things were going, leading to his hounding and eventual ouster. “It would only be fair to accept that all is not wrong with the Election Commission. It still conducted the biggest election in the world with clockwork precision and creditable efficiency. Where it faltered was on the yardstick of independence and neutrality in the enforcement of the model code of conduct, which caused a big dent to its enormous reputation. Scarred reputation is a huge price. The Election Commission does need to be put back on the rail(s)” (Quraishi, 2022).
The last sentence leaves no doubt that the Election Commission has lost its way.
The Supreme Court seems to be quite unconcerned about several other electoral reforms.
Supreme Court’s role
Though a former president has said that the Election Commission “has the full support of the Supreme Court” and that “it must act tough”, the reality is not that simple.
The maximum power that the Election Symbols (Reservation and Allotment) Order, 1968, gives to the Election Commission is to “either suspend … or withdraw the recognition of such party as the National party or … the State party.” This power was granted unto itself by the Election Commission under the plenary power bestowed on it by Article 324 of the Constitution, Representation of the People Act, 1951 and Conduct of Elections Rules, 1961 and has not been challenged in any court.
What is worth noting, however, is that the Election Commission has not used this power even once since it acquired it in 1968. During informal discussions, Election Commission sources say that they have been extremely cautious, actually reluctant, to use this as they think it is a brahmastra, an ultimate weapon, which, once used, might lose its effectiveness.
However, in reality, the real reason for Election Commission’s diffidence might well lie elsewhere – in the actions of the Supreme Court.
The most disturbing, bordering on bizarre, action of the Supreme Court came in a judgment in 2002 in the case of Indian National Congress (I) versus Institute of Social Welfare & Ors. The crux of the judgment was: “1. That there being no express provision in the Act or in the Symbol Order to cancel the registration of a political party, and as such no proceeding for de-registration can be taken by the Election Commission against a political party for having violated the terms of Section 29A(5) of the Act on the complaint of the respondent. 2. The Election Commission while exercising its power to register a political party under Section 29A of the Act, acts quasi-judicially and decision rendered by it is a quasi-judicial order and once a political party is registered, no power of review having conferred on the Election Commission, it has no power to review the order registering a political party for having violated the provisions of the Constitution or for having committed breach of undertaking given to the Election Commission at the time of registration.” …
As a cursory reading shows, the exceptions cannot be practically implemented. The judgement, therefore, creates a very strange situation. India is, perhaps, the only country in the whole world where once a political party is registered, it will remain registered for eternity. Political parties know that the Election Commission may do whatever else it likes, but it cannot de-register them. The Election Commission is also acutely aware of this and, therefore, shies away from taking really effective steps.
There are other instances that have been documented in the public domain. On the issue of decriminalisation of politics, the Supreme Court has been dilly-dallying for years after an initial demonstration of a progressive mindset while deciding two public interest litigations in 2002 and 2003. …
The matter came up again in another public interest litigation filed in 2011, which was decided in March 2014. Since then, there have been five more orders by the apex court, on August 27, 2014, November 1, 2017, September 25, 2018, February 13, 2020, and August 10, 2021. All these orders have pushed the envelope marginally without making any significant or observable change to the reality on the ground.
This is reflected in the number of Lok Sabha members with self-declared criminal cases pending against them rising from 24% in 2004 to 30% in 2009, and further to 34% in 2014 before reaching a high of 43% in 2019. Some of these feeble attempts have been detailed in a recent piece.
The Supreme Court seems to be quite unconcerned about several other electoral reforms. Two issues require specific mention.
The first is making the functioning, including financial affairs, of political parties transparent by bringing them under the Right to Information Act, 2005. This was approved by a full bench of the Central Information Commission in 2013, an order that political parties have blatantly refused to comply with. A petition has been pending in the Supreme Court since 2015.
The second issue is of electoral bonds, which the government introduced in 2017. While the petition was filed in the Court the same year, the only substantive hearing was held in 2019, after an application for a stay on the bonds was filed.
An interim order was issued, which said that “the rival contentions give rise to weighty issues which have a tremendous bearing on the sanctity of the electoral process in the country. Such weighty issues would require an in-depth hearing which cannot be concluded and the issues answered within the limited time that is available”. Three more applications requesting for an early hearing have been filed but the petition has not yet been listed for hearing.
The Election Commission may well be under pressure to do this, not as an end in itself but as a preparatory step to pave the way for other ambitions the government of the day may have.
The latest instance of inexplicable behaviour by the Election Commission is on linking voter IDs with Aadhaar. This story began in March 2015 when the Election Commission launched the National Electoral Roll Purification and Authentication Programme “a comprehensive programme […] with the prime objective of bringing a totally error-free and authenticated electoral roll”. A stated objective of the National Electoral Roll Purification and Authentication Programme was to link and authenticate Electoral Photo Identity Card data with the Unique Identification Authority of India’s Aadhaar data. This was banned by the Supreme Court in August, but by then 320 million voters had already been linked to their Aadhaar IDs. Multiple other problems were reported, including the disenfranchisement of some groups of voters in a seemingly systemic manner.
The issue came to life again in June 2021 when the Election Commission wrote to the Law Ministry seeking approval of the linking, circumventing the court order. After going through the motions of ostensibly trying to meet the conditions stipulated by the Supreme Court, the government got Parliament to pass the Election Laws (Amendment) Bill, 2021. The bill was introduced in the Lok Sabha in December 2021 and passed the same day. It was then presented to, and passed by, the Rajya Sabha the next day. This tearing hurry showed the keenness of the government to ratify this dubious action.
Given that one of the Election Commission’s stated reasons for linking the electoral roll to the Aadhaar database is to create “a totally error-free and authenticated electoral roll”, it is astounding how it seems to be blind to the infirmities in the Aadhaar ecosystem, which are by now well known. The Election Commission does not seem to have noticed a fundamental conceptual inconsistency in combining these two databases.
Aadhaar, as has often been pointed out even by government authorities, was designed as, and is, a proof of identity, and, if stretched further, a proof of residence. On the other hand, the registration of a person as a voter is a proof of citizenship, which confers on her the right to vote. It is strange to claim that combining these two will improve the accuracy of one, particularly when the other one is also not error free.
Of course, there often is more than meets the eye in such strange actions. Two former Chief Election Commissioners have been quoted as saying, on condition of anonymity, that the UIDAI had lobbied long and hard to link voter IDs and Aadhaar as a way to legitimise the controversial biometric ID project.
“They said we should integrate Aadhaar with electoral rolls to eliminate duplicates; the Commission held the view that we should hold off until we fully understand the implications,” said one of these former Chief Election Commissioners. The Election Commission of India succumbed in February 2015 when HS Brahma was the Chief Election Commissioner, and the exercise was launched in March.
The preparation of electoral rolls and periodic verification of their accuracy is one of the most important tasks that the Election Commission is mandated to do. The only way it can be done is the hard way, by actually going from door to door. It is possible that the Election Commission is looking for quick fixes and technical solutions, and linking its database with the Aadhaar ecosystem was one such attempt. On the face of it, it is likely to do more harm than good.
There is, of course, another possibility that is not obviously visible. The Election Commission may well be under pressure to do this, not as an end in itself but as a preparatory step to pave the way for other ambitions the government of the day may have. These could be holding simultaneous elections or implementing a one nation, one election plan, which have been discussed for almost three years with no acceptable consensus.
The author is associated with the India Forum and the Association for Democratic Reforms.