Recently, the Election Commission of India (ECI) in a letter to the Ministry of Law and Justice sought an urgent amendment to the Contempt of Courts Act, 1971, to empower it to punish anyone being disobedient or discourteous towards its authority.<1> The amendment sought from the Ministry is as “The Commission shall have, and exercise the same jurisdiction or powers and authority in respect of Contempt of itself as a High Court has and may exercise and for this purpose, the provisions of the Contempt of Courts Act 1971, shall have effect subject to modifications”.<2> In addition, the poll panel demanded that a subsection “contempt” should be included for civil contempt or wilful disobedience and criminal contempt, “including who scandalises or tends to scandalise or prejudices or interferes or tends to interfere with the due course of any function of the Commission”.
The ECI’s unusual demand comes in the wake of recent controversies surrounding the reliability of Electronic Voting Machines. Political parties such as the Aam Aadmi Party (AAP), Bahujan Samaj Party and even the National Congress have made series of allegations about the malfunctioning of EVMs and the failure of the ECI to provide a satisfactory answer to their doubts.
While the ECI’s demand has been labelled as an ‘uncharacteristic’ one by many, it is not the first time that such a demand has been made by the poll panel.
The ECI had made similar demands before the Dinesh Goswami Report on Electoral Reforms in 1990 which elicited zero response from the Committee.<3> Of Course, to the ECI’s rescue, a handful of countries such as Pakistan, Iran, Liberia, Venezuala have enacted laws empowering the electoral body to punish those who offend it in writings or in speech or by any other means. Yet, no other credible democracies have vested their electoral commissions with any contempt power. Instead, big democracies like the United States and Canada have bestowed their electoral bodies with enormous powers such as deregistering a political party, etc., for making of any false statement or declaration before the Election Commission.
The contempt power that the ECI is seeking has itself gone through major changes in the recent decades. The earliest instance of contempt power exercised was by Justice Wilmort in 1765 where the learned judge said that such power is for vindicating “the authority of Courts” and “to keep a blaze of glory” around judges. The key aim of having such a provision was to protect judges from scandalous allegations. This, however, has gone through rapid transformations as later it was recognised by the legal fraternity that the power of judiciary lies in the administration of justice. Hence, it was made clear that the power should never be used for the purpose of displaying majesty by the judges. It was accepted that the authority will come from public confidence, and this in turn will be an outcome of their own conduct, their integrity, impartiality, learning and simplicity. No other vindication is required in a democracy by Judges, and there is no need for them to display majesty and authority.<4>
Often times, Indian judiciary has expressed similar judgement in contempt powers. For instance, in Rajesh Kumar v. High Court of Judicature of MP<5>, Justice RV Raveendran remarked that, “It is possible that it is done to uphold the majesty of courts, and to command respect. But judges, like everyone else, will have to earn respect. They cannot demand respect by demonstration of ‘power’ (of contempt).”<6> Thus, at a time when courts all over the world are changing their minds on contempt provisions, the ECI’s hankering for such powers puts it at very odd.
Even when the ECI believes that it has been a victim of opportunistic politics where political parties look for easy scapegoats for their political survival, the Commission should remember that the trust, which is a volatile currency, can only be earned. As the country moves toward digitalisation, problems concerning transparency and credibility of the instruments (in this case EVMs) to be used for elections are bound to arise. And the ECI, as it has always since the 1990s done, should address the problems for an average Indian voter has more faith in the elections than in the courts, the police, the bureaucracy and even the legislatures. What is required is to lay all the view points on the table whether that involves healthy or unhealthy criticism, and then to honestly try to reach a conclusion. The solution lies in the acknowledgment of the views and not in taking offence.
What the ECI should, instead, fight for is the passage of electoral reforms suggested by successive governments and their appointed committees and commissions. Electoral reforms such as decriminalisation of politics, transparency in funding of political parties, making bribery a cognizable offence, criminalisation of paid news, etc. can greatly empower the Commission. Compared to its global peers, the Indian Election Commission is relatively a weaker body as far as enforcement of campaign violation, poll bribery, violation of election code of conduct are concerned. The Commission does not enjoy any penal power on submission of false affidavits or election expenditures. So, what the ECI needs to demand is amendments in The Representation of the People Act, 1951 in connection with above electoral matters to check electoral offences, paid news, and for powers to regulate the registration and de-registration of political parties, election funding and scrutiny of party finances.
Kritika Goyal is a Research Intern with Observer Research Foundation.
<1> Ritika Arora, “Give us contempt powers to act against those out to sully our image” EC to Govt”, The Indian Express, June 12, 2017.
<2> “Give power of contempt, to book those who try to defame: EC to Govt, The Morung Express, June 12, 2017.
<3> Committee on Electoral Reforms, Report of The Committee on Electoral Reforms, May 1990, accessed on June 20, 2017.
<4> Markandey Katju, “Contempt of Court: need for a second look”, The Hindu, January 22, 2007.
<5> Rajesh Kumar v. High Court of Judicature of MP, AIR 2007 SC 2725.
<6> Satya Prakash, “Don’t misuse contempt law, says SC”, Hindustan Times, July 11, 2007.
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