Originally Published 2011-05-27 00:00:00 Published on May 27, 2011
Elections-2011 was noted for the way the Election Commission attempted to check the use, misuse and abuse of money-power and political power. It may not have succeeded fully, but there was no denying the presence of the Commission in every nook and corner of the poll-bound States.
Need to define the role of Election Commission
The five State Assembly polls in April-May 2011 has produced a victor going beyond what the voters in Assam, Kerala, Tamil Nadu, West Bengal and Puducherry have chosen. The Election Commission has appropriated kudos that goes beyond the role assigned to it under the constitutional scheme - and not without reason.

In the Nineties, T N Seshan as the Chief Election Commissioner conferred on the poll panel the relevance and respectability that the institution and its processes had deserved but had not been acknowledged. Before his time, the Election Commission used to be not heard or seen, though its benign presence was felt during election time. So low profile and a subordinate role had the Election Commission assumed in the early decades after Independence that it used to be taken for granted that the Government of the day at the Centre could and would decide on the matters assigned to the panel under the constitutional scheme - starting with the finalisation of the election schedule. Interference by the Election Commission to ensure a free and fair poll was unheard of those days, even though malpractices of every kind had been known to have existed, though of varied proportions, then as now.

The Election Commission's initiatives in the recent elections were a natural progression of the trend set in motion in the early Nineties. Independent of issues pertaining to the supremacy of the CEC over the later-day appointment of two Election Commissioners when Seshan held the wheel, or when seniority and corruption issues dogged the poll panel as with other institutions of governance, it held forth, nonetheless. If anything, it only grew in stature and substance, without allowing internal equations to come in the way. It was thus that in the Bihar Assembly polls in 2010, followed now by the Assembly elections in 2011, equal, if not more, media space came to be allocated to the poll panel as for all the political parties in each State put together. After all, the Election Commission is the only stakeholder involved in the conduct of polls in all the States and all constituencies in an equal/equitable measure, compared to even the political parties staking claims to form government(s).

Elections-2011 was noted for the way the Election Commission attempted to check the use, misuse and abuse of money-power and political power. The latter related to the party in power. It may not have succeeded fully, but there was no denying the presence of the Election Commission in every nook and corner of the States that went to the polls. It was felt more in Tamil Nadu and West Bengal in particular, where 'scientific rigging' had taken new forms and names. 'Cash for vote' was only one. That the Election Commission could enforce discipline among the State Government employees and command them to do be fair and fearless in the discharge of poll-related duties has made a difference to the quality of work that could be extracted from the very same people when placed in different circumstances. The Administrative Reforms Commission (ARC), and also intellectuals and academics working on aspects of good governance may have a pointer there, to follow up on and study.

New meaning and direction

Apart from launching days-long operations across the State, to check transfer of illegal money through all modes of transport, in the case of Tamil Nadu, the Election Commission ordered the overnight transfer of the Director-General of Police, and indicated the same in the case of ADGP (Intelligence). Down the line, more police officials and bureaucrats were transferred, with the aim of ensuring free and fair elections. The Election Commission also summoned the services of senior officials from other States for poll duty in Tamil Nadu. To a greater or lesser degree, it was the case in the other four States, too. It had been so in the 2010 Bihar elections. Possibly for the first time ever, there were no incidents of violence in the State at the time. Each election that way has been an improvement on the previous one, in terms of the Election Commission's reach, depth and width in the enforcement of the 'Model Code of Conduct', accounts-verification process for individual candidates and parties, and overall law and order enforcement during the poll period. For a nation that embraced elected democracy as the best way to govern itself, the Election Commission has introduced a new meaning, purpose and direction since 1991. In a way, electoral reforms and ethics were not on the top of the national agenda at the turn of Independence, or later when "we, the people of India" gave ourselves a Constitution and constitutional scheme. In good time, they have claimed their due place. The process(es) had been delayed but could not have been put off, however.

Their diffidence to the contrary notwithstanding, political parties and governments in the country have had exhibited a unique conciliatory tone, bordering on grudging acknowledgement of the role of two constitutional institutions. The higher judiciary has traditionally remained one. The Election Commission has acquired a similar status since it shed its image as a 'toothless tiger'. As has variously been explained by a succession of CECs and Election Commissioners over the past two decades, the poll panel has been acting only within the framework of the Constitution and the laws of the land. It has derived additional muscle from a series of Supreme Court verdicts. It was the court, not the legislature that conferred legality and enforceability on the 'Model Code'. The Executive and the Legislature have not had the moral courage to contest it. The courts had similarly clarified that all poll-related officials deputed/co-opted from State and Central Government services would come under the administrative and disciplinary control of the Election Commission. This has not been contested even by trade unions of Government employees, or the associations of the elite corps from the IAS and IPS. Lately, the Election Commission has shown an uncanny knack for enforcing these two provisions to great effect. The processes initiated by the Election Commission on this score and others have restored the fast-fading confidence of the people at large in the poll process and democracy as a whole. The feeling of restored confidence in democracy is no more confined to the urban elite or their rural counterpart. Across the country, the sense of despondency in participative democracy has been replaced by hope.

Need for greater legitimacy

It is now the Election Commission will have to eschew any over-arching ambition to out-bet other constitutional institutions. Nor could individual Election Commissioners, starting with the CEC, come to any hasty conclusion that armed with constitutional powers and court verdicts, they could seek to replace any other arms/pillars of Government under the democratic scheme. Independent of the party or person in power, the Executive has emerged as the favourite whipping boy of all other pillars of democracy, starting with the higher judiciary. While a free media has been acknowledged as a fourth pillar, in the Indian context, the Election Commission has emerged as the fifth and the newest. The Legislature, by not doing its work properly and not displaying the decorum that is demanded of it, has also been taking endless pot-shots at the Executive, stalling its own work, and putting the latter on the defensive, all the time.

It is not a healthy trend. For a greater purpose and meaning to be derived from the on-going exercises involving the Election Commission, greater legitimacy and constitutionality need to be conferred on it more directly, to make its actions justiciable under all circumstances. If today, some of the actions and decisions of the Election Commission have gone uncontested, it owes to the unquestioned compliance by the 'affected party / parties'. Challenges, judicial and otherwise, could cause a stalemate, in an evolving situation. Defiance could deny the nation the incremental benefits that the Election Commission has been able to accrue. Needless to say, every other political party and leader is waiting for someone else to play the challenger. Together, they are waiting for the Election Commission to blink, and blink first. This is independent of their public posturing at all times, and specific commendation on the good work done by the Election Commission whenever and wherever it intervenes in States where the party concerned is not in power.

One argument is for the Government(s), political parties and people to consider the wisdom of introducing a constitutional provision that facilitates automatic imposition of President's rule and dissolution of State Assemblies three months prior to the conduct of fresh elections. The demand has been around for decades now. Question would then arise if administrative powers would continue to rest in the office of the Governor, as is the case now when there is no elected Government in office, or would it be arrogated by the Election Commission. The transfer of DGPs and appointment of Chief Secretaries do not fall under the purview of the poll panel's inherent powers. Nor should they become so, otherwise. After all, the founding-fathers did not visualise/assign such a role to the poll panel. Nor is it equipped to run a State Government, from the top. Yet, there is no denying that every arm of a government in a State or at the Centre could be used, misused and abused to sub-server a party in power - or, one that had demitted office ahead of the polls. A similar question would arise in the case of the Centre vis a vis elections to the Lok Sabha. The Supreme Court, in this context, has held that the President cannot act on his own in the absence of a Council of Ministers (U N R Rao vs Indira Gandhi, SC, 1971). It was to avoid a situation in which no President could become autocratic and dictatorial. The theoretical position would hold good for all time to come.

Similar concerns about a new oligarchy should apply to the Election Commission, too. There is the danger of an ambitious schemer donning the mantle of the CEC seeking to acquire over-arching powers in the run-up to the polls. If nothing else, the Constitution bars judicial intervention after the poll process had been set in motion, and until after the results are announced. This provision could be misused, to sub-serve perverse personal ambitions of individual(s). There have been instances of the kind in the past. Thus any additional powers to the Election Commission to oversee civil administration during the poll period could be fraught with unforeseen dangers, for which the Constitution cannot be expected to provide advance remedies. A national discourse would thus be in order.

 As seen in the pending issue relating to the incumbent CVC (Chief Vigilance Commissioner), the Supreme Court is saddled with a new case flowing from its own ruling in the 'Vineet Narain case'. Simultaneously in the '2-G scam', the Supreme Court, having conferred on the CVC the supervisory role of the CBI in the 'Vineet Narain case' has been forced to take back that power (in effect) and supervise the CBI investigations, itself. Such a trend cannot be allowed to repeat itself in the case of the Election Commission, now or ever. It could jeopardise the democratic processes and principles as nothing else could do - and also come in the way of smooth and timely transitions, as outlined in the Constitution. The Government and the political parties should thus put a national discourseof the kind on their priority list. In the absence of their initiative, exceptions could end up becoming the rule with each passing election. If any drift of the kind is allowed a free flow, unchecked, a grave threat to the constitutional scheme could emerge, for no fault of anyone.

Strong leaderships, weak parties

The Election Commission's initiative in checking the use of money power in polls has had an unexpected fall-out.  The decision to cut short the campaign period and publicity material, and those on the 'defacing' of walls has taken the electoral initiative away from individual candidates. As successive elections in many States have shown, a new crop of candidates get introduced in each election, and their respective party leaderships have made it a legitimate habit of naming them almost at the last hour. This means that there is not enough time between the filing of the nomination papers and the end of campaign time, for the candidates to get their names popularised among the voters. This means that the party standard and symbol, representing the leadership, and not the candidate, alone gets noticed.

In a democracy, where long years of exposure has made established political parties vulnerable to the possibilities of decreasing vote-share, the inability of their nominees to popularise their faces among the votes is an unexpected boon that the leaderships would relish - and could thank the Election Commission for. It would be worse in the case of independent candidates and groups, who would like to provide a 'change'. Translated, this means that even as established political parties continue to lose their sheen, new parties and leaders could not emerge successfully, to try and replace them. The inherent disabilities that they suffer even otherwise would get accentuated, and their staying-power could become a question-mark.

The alternative scenario would imply that those wanting to enter politics and contest polls should have been around for a long time, for the voters to recognise and recall their faces at the time of elections. This could mean that only popular faces, as with film stars, could launch new parties and hope to stay afloat and ahead. Yet, it would cost money. For new political parties, it implies deep pockets, for them to stay afloat for a longer period and become capable of challenging the status quo. Deep pockets are an anathema to free politics and fair elections. Over time, it could have caused a natural elimination of 'unviable' political parties, limiting the number of the surviving ones to a minimum - and thus create a political monopoly in a multi-party democracy. The West calls it a 'bipartisan arrangement'. This again needs to be debated and decided upon, before the current methods of the Election Commission leads to a situation where the inherent tenets of the Indian State-formation and the inherited democracy that we have imbibed with fascination and faith does not become an albatross around the nation's neck.

(The writer is a  Senior Research Fellow at  Observer Research Foundation)

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