Politics on Constitutional Institutions: RSTV - The Big Picture

RSTV Big Picture Politics on Constitutional Institutions:-

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Anchor: Frank Rausan Pereira

Guests: Akshay Rout, Former Director General, Election Commission of India; Ashok Tandon, Senior Journalist; K Agnihotri, Former Secretary General, Rajya Sabha & Constitution Expert; J Sai Deepak, Advocate, Supreme Court

Larger Background:

• At a time when the Election Commission is under fire from Opposition parties for being biased, former president Pranab Mukherjee has lauded the role of the poll panel saying that the 2019 Lok Sabha polls were conducted “perfectly”.
• The former Congress man’s regard for the poll panel has resulted in appreciative tweets, mostly from Bharatiya Janata Party leaders. The Congress, however, said it did not think that the former president was “aware” of the incidents of the poll panel giving a clean chit to Prime Minister Narendra Modi for every alleged violation.
• Speaking at a book launch event in New Delhi recently, former president Pranab Mukherjee said that right from the first election commissioner Sukumar Sen to the present election commissioners, the institution is working very well.
• He said all the three commissioners are appointed by the executive and they are doing their job well. His remarks came a day after Congress President Rahul Gandhi alleged that the Election Commission’s “capitulation” before Prime Minister Narendra Modi is obvious and the poll watchdog is not feared and respected anymore.
• This edition of the big picture will analyse the politicization of democratic and constitutional institutions.

A Look at the S.S. Dhanoa vs Union of India Judgement:

1. The Supreme Court in its 1991 judgment in S.S. Dhanoa vs Union of India and others said the CEC deserves a higher degree of protection because he is “a permanent incumbent” of the Election Commission, whereas the number of E.C.s can be varied depending on the workload.
2. The government has the prerogative to create or abolish the E.C.s’ posts. For many years, India had a single-member Election Commission, but this changed in 1989-90. And since 1993, it has been a three-member body.

Why has the election commission been under so much political scrutiny?:

• This happens practically in every election. This is because when the stakes are high, there is a sense of anger and the language as well is not controlled. Further, there is anger vented out against the election commission for minor things as well as major things. However, the fact remains that no one has questioned the integrity of the election commission of India. The former President of India, Shri Pranab Mukherjee has made a very pertinent suggestion- he has mentioned that the process of selection of the election commissioner needs to be given a relook. There is nothing wrong in this. Further, he has also appreciated the election commission’s functioning. However, by and large, if you look at the whole issue and if you look at the reports in the international media, no one has raised a finger against the manner in which the elections are conducted in India. As a matter of fact, everyone has been lauding the election commission of India.  
• It is important to note that India is a huge country with a staggering diversity, and very few people, if any, talk in appreciation of the officers who are conducting the elections. The staff which conducts elections in remote areas need to be appreciated. It is also an oversimplification to criticize the Election Commission of India, by saying that it is being politicized. A majority of complaints are in the domain of carrying out speeches- these cases are looked into with scrutiny.
• In the past, there used to be only a single Election Commissioner- however currently, we have 3 election commissioners, including 1 Chief Election Commissioner.
• Even ballot boxes have now been replaced by EVM’s. In the past, there were incidents of rigging and violence as well- however, these days, such incidents have gone down drastically. We have also had the introduction of VVPAT’s as well. All these developments go to suggest that there have been significant improvements in the electoral system.
• Having said this, when complaints are not addressed during the elections, then one cannot strait away start suspecting the election commission of India.

Could the Election Commission of India have done anything differently this time?

• The fact is that the quality of discourse in the recently concluded elections has not been of a very good nature. This is one aspect, and therefore a lot of complaints have been generated. The point to consider is that the whole electoral process is time bound. Things have to be done very quickly, and when things have to be done very quickly, one has to look at the complaint in a very objective manner and take a quick decision.

What are the limitations as far as the Election Commission of India is concerned?

• When the Constitution of India was formed, the founding fathers of the Constitution of India, after a lot of interesting debates in the Constituent Assembly put forward two things- one, they gave Universal Adult Suffrage in a single stroke. This is unlike the experience which we see in many other countries. As a matter of fact, this was a gift to the whole Indian Citizenship.
• After this, was the forming of the Election Commission of India. They conferred on the Election Commission of India, the powers of superintendence and control of the whole electoral process.
• Currently, we are a country, with an electorate of 91 crore people, which is much larger than many continents. We have 10 lakh polling booths. We also have 11 million polling personnel. We are also a country of great diversity, variety and all types of complexities.
• It is within this framework that the Election Commission of India has to handle certain practical issues. Further, the one quality which makes the Election Commission of India unique is the fact that it is a combination of judicial, regulatory, and administrative authorities. There aren’t many constitutional institutions which are like this.
• It is also important to note that Mrs. Hillary Clinton, the former U.S. Secretary of State, has said that the Election Commission of India has set gold standards in election management- we have many such instances where the Election Commission of India has been praised time and again.  
• In this year’s (2019) general election, around 510 cases of the MCC (Model Code of Conduct) have been addressed and they are all in the public domain. Further, around 900 posts on social media platforms as well which were of a violative nature have been taken down.
• Logistics and Security are also major issues which the Election Commission of India has had to deal with. In India, we have Left Wing Extremist (LWE) areas, we also have difficult areas in Jammu and Kashmir- in spite of all these challenges, it has been by and large a peaceful election. As a matter of fact, it has been a peaceful, transparent, participatory election.

What is the ambit of the Election Commission of India, and what are its limitations?

• In a country like India which is so vast and diverse, we sometimes don’t appreciate the efficacy of some of the central institutions and systems which are in place. Also, these institutions work when they are supposed to work- be it the banking system or be it the electoral system. This is something that we really need to appreciate.
• At a time when countries like the United States, and the so-called ‘advanced nations’ do not seem to get a hold of how elections need to be carried out, India has been doing a fantastic job of it.
• Today, the powers concerning the Chief Election Commissioner is being spoken about in a very shabby manner when it comes to public discourse. As a matter of fact, there seems to be absolutely no kind of restraint or control in terms of the kind of allegations that are being hurled at the office of the Election Commission of India.
• The manner in which the organization is being used as a tool to further political agendas is atrocious. It appears as though things have reached the nadir.
• There are two important judgements: a) SS Dhanoa (Passed in 1991) b) TN Seshan Judgement (Passed in 1993)
• Both these judgements are fantastic, and lay down clearly as to what exactly is the role of Article 324 of the Indian Constitution. The one thing that comes out very clearly when one reads the provisions as well as the judgements is the fact that the reason that this institution was given an insular status, was to make it insulated from any kind of political pressure. This assumes importance especially considering that one of the things that this organization must be relatively free from is baseless aspersions on its integrity.
• When we level baseless allegations against institutions that are meant to preserve certain basic constitutional identities of the country, there is a problem that society is staring at and there should be a deterrent to this.
• Further, one of the ways that the Commission works, which preempts any sort of politicization, is extensive consultation. This includes areas such as:
  • The running of the EVM
  • How would the EVM be tested? etc.

• All these processes are done after many rounds of pre-consultation with the political parties. This is also done in the presence of the political parties. After the consultation is done, the commission takes on the task of enforcement.
• Further, it is important to point out that during the elections, are we going to suspend Article 19(1)(a), which confers the freedom of speech and expression? Are we going to suspend this Article just because there is an election? If someone is not infringing on Article 19(2), then how can we make the same a violation of the Model Code of Conduct?
• Unfortunately, in this election, there has been a conflict on the question of code of conduct and Article 19(1)(a).
• There have been many instances in which the opposition leaders have filed complaints with the Election Commission of India, calling it a violation of the Code of Conduct, whereas it came under the purview of Article 19(1)(a).
• There have been complaints against the Prime Minister as well on this issue. This was seen especially when he was talking about national security. Now, talking about national security was construed as a violation of Model Code of Conduct (MCC).
• However, Article 19(1)(a) is the fundamental right of every citizen of the country, including the Prime Minister. So, just because elections are taking place, does that mean that one would suspend Article 19(1)(a).
• Secondly, it is important to note that if ever there is a violation of Article 19(2) during the election campaign, then the law will take its own course.
• The Election Commission of India can’t be assuming the duty of policing. It must be kept in mind that at this rate, unfortunately, any speech by politicians would be construed as a violation of the Model Code of Conduct.

Is the trend of politicization of constitutional institutions concerning?

• We need to keep in mind that every regime has appointed election commissioners of their own choice. These election commissioners have largely been bureaucrats who are committed to the constitution of India. They have no allegiance or loyalty to any political party.
• Thus, why is it that we as a society would stop trusting the loyalty of this bureaucrat the moment he/she becomes an election commissioner? We immediately raise a finger on that person’s integrity. This is not fair. Mayawati went to the extent of calling the Chief Election Commissioner as an RSS agent! What has the Election Commission of India done to suggest that there has been a politicization of the institution? As a matter of fact, other institutions have also come under fire. Even the CAG has come under fire. The Supreme Court of India and judges in the Supreme Court have also not been spared- thus this raises a bigger question: where do we go from here?
• It is important to note that India is the largest democracy in the world with an effective means of ensuring checks and balances.
• It is also important to note that the same bureaucracy which normally works under a political establishment, behaves in a different manner because it carries out the political mandate as well. However, during the time of elections, when these bureaucrats are deemed to be a part of the Election Commission, they act with absolute neutrality. This has become the talk of the world.  
• Further, there is a detailed grievance redressal mechanism within the Election Commission of India.

Suggestions for improving the functioning of the Election Commission of India:   

• It is important to have a relook at the manner in which the Election Commissioners are appointed. This is a matter that is pending before the Supreme Court on a PIL filed before it last year (2018). This has now been referred to a  Constitutional bench.
• Perhaps a collegium systems may be introduced for the election of the election commissioners. This is one area which we need to improve.
• Further, the other two election commissioners are not on the same footing. However, they need to be brought under the same footing. This is to ensure the independence of the institution.
• Two things are very important for a constitutional body- one is independence, while the other is transparency. The “Model Code of Conduct” should be made to have statutory backing.

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RSTV Big Picture Politics on Constitutional Institutions:-

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