Need to sharpen teeth

Poll Management Body

By Dr S Saraswathi
(Former Director, ICSSR, New Delhi)

A rude shock was given to the Indian democratic government when the Election Commission of India admitted in the Supreme Court that it was “toothless” and did not have enough powers to act against religious and hate speeches during the on-going poll campaigns.
The court was hearing a petition on increasing hate and divisive speeches in the name of religion in poll campaigns. The petition sought a close watch on the poll process and the fairness of the Election Commission by a committee headed by a former judge of the Supreme Court. After several instances of hate speeches, unsubstantiated accusations, religious provocations, twisting of facts, half truths and blank lies, the EC sent notices only in three cases.
The Supreme Court gave 24 hours time to the EC to explain its powers under the law against “candidates who spew vitriol”. Referring to EC’s submission that its powers were limited to sending notices and advisories to offending candidates and filing civil and criminal complaints in case of violation of Moral Code of Conduct (MCC), the Court decided to examine EC’s powers in detail.
Rejecting the plea of “standing instructions” governing their functioning, the court reminded the EC that time was limited and it had to act promptly.
The election atmosphere is deteriorating day by day and speeches pour venom and hatred between rival parties and candidates. But, the Commission put a ban on only four senior political leaders from campaigning for two to three days for making speeches violating the MCC. The bar prevented them from giving interviews or making comments on electronic, print or social media on election-related matters during the bar period.
Never before in the Indian experience, a General election has drawn public attention as much as the present 17th Lok Sabha election due mostly to heightened awareness of the citizens. Having earned world-wide acclaim for peaceful, orderly, and regular election, India bears a heavy responsibility to safeguard its reputation. To fulfil this, the country depends much on the system and functioning of the election management body — the ECI.
Starting as a low profile political activity in 1952, the General election has gradually gained extraordinary political significance as the most important political event. Throughout the year, somewhere election is going on keeping this body busy. It is an amazing political development in which the ECI has a preeminent role.
Conducting an election in a big country with a federal set up is a complicated administrative operation. Complications grow in surcharged political atmosphere and have reached a peak today where parties stake everything to get into places of power or influence and some speakers tend to lose control over their tongue in their efforts to brainwash the voters. The election managerial body in charge of organising and conducting the event, therefore, becomes the focal point of appeals and attacks from all sides.
Control, management and conduct of elections to Parliament and State legislatures and to the offices of the President and Vice-President of the country are vested by the Constitution in the EC. Created as a single member body in 1950, it became a three-member body in 1990 and a three-member Commission in 1993. Election Commissioners are in status equal to Supreme Court judges.
The power vested in the Commission is limited to election-related matters like preparation of voter lists, delimitation of constituencies, registration and recognition of parties, conducting elections, counting of votes and declaration of results. It is in charge of implementing the Moral Code of Conduct in campaigns. In these specified areas, the EC is the real master.
When the Constitution was in the making and when it came into operation, nobody would have imagined that EC would be burdened with extraordinary weight of democratic responsibilities. Indeed, the position of the Election Commission is unenviable.
Today, every election for Parliament or Assembly, a General election or a by-election, is a testing time for the EC. It has to face numerous challenges in its work from many players including political parties, pressure groups, candidates, and voters. Implementing the MCC is a full-time job for the Commission these days as violations have become the rule for some parties and adherence to the Code an exception. This, despite the fact that the Code has been framed by the Commission in consultation with political parties and not imposed on them from an external authority!
However, the Code is not law and cannot be enforced in a court of law. When any action which is violation of the Code is also an offence under any law, the EC can recommend registration of a case against the person/party concerned. EC’s notice to any parties for violation of the Code invariably receives prompt response indicating that that there is general acknowledgement of EC’s authority.
The Code’s effectiveness comes from the EC’s active and prompt intervention as poll watch and not from successful prosecution of cases of violations. Violations do take place taking advantage of relaxed atmosphere and limitless number of cases and perhaps with a false hope that action would not be taken against politically important people. Most importantly, Code violations in several cases produce their effects immediately. Violation is an infectious disease and spreads fast.
Sending notices to erring candidates and following it with advisories is not without effect. Identifying and naming a culprit and asking for explanation are enough in many instances to curb repeat offences. It is absence of questions from concerned authorities that encourages culprits to multiply offences without fear. The EC may not have very sharp teeth to permanently damage the culprits, but certainly has enough powers to bend them into submission.
The EC’s power is substantial. It has many times postponed an election already announced and can even abrogate an election already held. In 2012, the EC cancelled a Rajya Sabha election in Jharkhand after polling on the ground that candidates were bribing voters. Polling in Vellore in Tamil Nadu has been countermanded in the present General election following discovery of huge sums of money for distribution to voters. The Madras High Court has confirmed that the court cannot interfere in the EC’s decision.
However, the EC cannot disqualify a candidate for any misconduct, but can only recommend filing of cases and cannot deregister a party. It can decide on holding an office of profit, or acquiring foreign citizenship which would disqualify a candidate. Its decision is final.
The EC has been subject to criticism from parties and candidates and has even sought power to award punishment for civil and criminal contempt. Accusations against the EC’s functioning are common. The EVM has come under severe criticism. The Voter Verifiable Paper Audit Trail (VVPAT) system has been introduced, which prints a slip showing the name of the candidate, voter serial number, and poll symbol when a vote is cast.
The EC has substantial powers in election-related questions. It has detected crores of money intended to purchase votes in this election. It has to sharpen its teeth by use and be ready to bite.—INFA