Last Thursday, a Supreme Court Bench consisting of Justices D Y Chandrachud and M R Shah delivered a significant judgment. The court considered the plea by the Election Commission that sought to expunge certain oral observations of the Madras High Court against it. The Madras High Court, while considering COVID-19 related case, said that the EC was singularly liable for the second wave of pandemic by failing to regulate the crowds during the election and should probably face murder charges.
The media reported these observations. The EC was aggrieved by these oral strictures and the media reports about them. The Supreme Court rightly rejected the plea by holding that the institutions such as the EC are not immune from criticism. “Our public constitutional institutions must find better responses than to complain,” the court said. It also said that freedom of speech extends to reporting of judicial proceedings. It noted further: “it would be retrograde for this court to promote the rule of law and access to justice on one hand and shield the daily operations of the High Courts and this court from the media in all its forms, by gagging the reporting of proceedings, on the other.”
In addition to seeking expunging of remarks, the Commission asked for some form of media censorship as well, as far as court reporting is concerned. Although the court rejected this demand, this conduct of the Commission is an extension of its recent backsliding as a constitutional body. The EC has been accused of subserving those holding power at the Centre. The institution is criticised for alleged political bias and partisanship. It faces serious trust deficit. We have two basic enactments dealing with elections – The Representation of the People Acts of 1950 and 1951.
The EC has a pivotal role under both the legislations. The Act of 1950 deals with delimitation of constituencies, preparation of electoral roll etc. The latter enactment deals with conduct of the election. Section 125 of this statute contains a significant warning. It penalises whoever promotes enmity between classes, in connection with election, on the ground of religion, community etc. It is a statutory deterrent against using hate to solicit votes. The law encompasses many such activities and label them as punishable offences. Preventing the offence is a sound forensic principle. Viewed so, the EC must act as a constant guard for maintaining a healthy democracy.
One can see that the coalition politics in India gave better functional autonomy to the EC. The period between 1989 and 2014 illustrates this point. The Centre for the Study of Developing Societies (CSDS), Delhi, in a 1996 survey found that the EC had captured the people’s trust and even the judiciary in India had to remain only next to it, in terms of public’s faith. The nation witnessed the proactive impartiality of TN Seshan for whom the implementation of Model Code of Conduct was an integral part of any election. His tenure conveyed the message of free and fair election to the public at large. The point, however, is that the systemic deficits cannot be rectified by the emergence of individuals.
After the resurrection of the majoritarianism, political parties used religious feelings as an easy and effective tool to canvass votes. The Commission failed to check hate speech in (and since) 2014 when the BJP got majority in the Lok Sabha. The Congress, too, had played foul many a times when it enjoyed absolute majority. But due to an active judiciary and better ethics in politics during the period following the Independence, the institutional damage to the EC was minimal. The Commission has no police force of its own. It has no ‘purse or sword.’
For the conduct of election, it must depend upon the central forces and the state police. The recent Bengal election was marred by hate as a political device, for which the innocent public had to pay a heavy cost even in terms of their lives. Formed in 1950, the EC has travelled a long and difficult path since then. The body is chosen by the executive. The irony is direct and embarrassing - an appointee by the majoritarian executive is expected to act judiciously and independently, when confronted with political parties. This is a fundamental flaw in the design of the EC.
A free and fair process to select the EC is, therefore, an imperative for the fulfilment of its role as a neutral arbiter. An assertive EC should be politically nonaffiliative. It is also essential to minimise the EC’s dependence on the executive for doing its constitutional duty. An independent law enforcing agency as visualised by the Supreme Court in the Prakash Singh case (2006) can go a long way to ensure functional autonomy for the EC. In the Vineet Narain case (1997), the Supreme Court had evolved a select panel consisting of the Prime Minister, the Home Minister, and the opposition leader for choosing the Central Vigilance Commissioner “from a panel of outstanding civil servants and others with impeccable integrity, to be furnished by the Cabinet Secretary.”
Likewise, a better select body was suggested to choose the CBI Director as well. The selection of the EC needs to have a representative, divergent and participative character. In his classic work, journalist Philip Coggan explained the crisis faced by the democracies in the West. His book published in 2013 had a cautioning title- ‘The Last Vote.’ The electoral reforms in India need to begin with reimagining the EC. It should be revamped both structurally and functionally to preserve our electoral democracy.
Kaleeswaram Raj
Lawyer, Supreme Court
kaleeswaramraj@gmail.com