The Election Commission (EC) has been set up by the Constitution for “superintendence, direction and control of all elections” in the country. So long as there are elections in India, the EC would undoubtedly be relevant. The question that is being raised today, however, is whether it is proving itself worthy of the trust. The commission has, so far, had an impeccable track record after conducting over 360 Assembly elections and 16 Lok Sabha elections freely, fairly and transparently, with clockwork precision. It is currently conducting the largest election in world history. The entire world is eyeing these elections with a curiosity like never before.
Unfortunately, alongside the mindboggling magnitude of the human management event, what they are seeing is the constant threat to the image of the institution, from the political leadership. The Model Code of Conduct, a consensus-based agreement between political parties and the Commission, which has historically proved to be a unique instrument for the credibility of all the elections, is being challenged every day.
On April 15, the ECI’s lawyer submitted to the Supreme Court that the commission is largely “powerless” and “toothless” to act against religious and hate speeches by candidates during the ongoing Lok Sabha election campaigning.
It is undeniable that the commission is suffering from a crisis of credibility like never before. It’s a pity that the Supreme Court has to remind it of the immense reservoir of powers it has. The commission, by using its plenary powers under Article 324, has sought to restore some of its dwindling prestige. But there are several other cases of violations of more grievous nature, including from the highest in the land, which are agitating the minds of the people.
Top leadership, which has taken the oath of upholding the Constitution and its institutions, is thumbing its nose to the Election Commission day in and day out, doing incalculable harm to both the institutions. It is unfortunate that the patience and the backbone of the commission is being tested on a daily basis. This must end.
What we need is constitutional protection to the arrangement originally visualised. The Chief Election Commissioner (CEC), once appointed, enjoys security of tenure and is not accountable to the government. He cannot be removed except by impeachment like a judge of the SC. But the same protection is not accorded to the two other commissioners. The government can control a defiant CEC through the majority voting power of the two commissioners, who have equal voting powers.
The commissioners, without the confidence of assured elevation as CEC, feel as if they are on probation, which is a serious lacuna. Hence, all three need to be appointed through Collegium consisting of the PM, the LoP and the CJI, as has been suggested by previous CECs, the 255th Law Commission report and stalwarts such as LK Advani.
The EC loses credibility when it fails to rein in recalcitrant political parties. Despite being the registering authority under Section 29A of Representation of People Act, 1951, the Commission has no power to de-register political parties for violations of MCC, or even for the gravest of violations of the oath taken during registration.
This is critical to curb hate speech and the fast degrading discourse we are witnessing in these elections. The commission has been asking for this power for many years. Time is running out.The writer is a former Chief Election Commissioner of India and author of An Undocumented Wonder: The Making of the Great Indian Election