CEC can revoke Poll Transfers

By Inder Jit
(Released on 2 April 1991)

The Chief Election Commissioner, T.N. Seshan, and his colleagues in the Commission deserve a hand. They have done well to probe the poll in Bihar, Uttar Pradesh, Haryana, Madhya Pradesh, Andhra Padesh and Tripura. The Bihar Chief Minister, Mr Laloo Prasad Yadav and others are welcome to believe that they have outsmarted the Election Commission by posting pliable or obliging officials in areas where they can be helpful in the forthcoming poll. Many of these officials are reported to have been shifted even on a holiday without any qualms of conscience. Bihar transferred as many as 75 officers on March 24. Uttar Pradesh moved 25 IAS officers the same Sunday and another 10 officers early on Monday. However, the CEC is right when he asserts that he has “equate powers” to deal with such transfers. True, the Commission has no direct statutory power to stop or revoke transfer orders. Nevertheless, it enjoys vital and wide discretionary powers under the Constitution to ensure a free and fair poll.
To begin from the beginning. The Founding Fathers of the Constitution were clear that free and fair elections were the bed-rock of any democracy. They then went ahead to create an independent Election Commission which would function without fear or favour. Accordingly, Article 324 (1) of the Constitution provides: “The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under the Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission.)” But all this would have been meaningless without ensuring the independence of the CEC. The Founding Fathers, therefore, also provided under the same Article that “the Chief Election Commissioner shall not be removed from his office except in like manner and in like grounds of a judge of the Supreme Court.” Further, “the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment”.
Importantly, the powers of the Election Commission in regard to three matters — superintendence, direction and control — are absolute and cannot be questioned by anyone. Not many remember that these three key words were deliberately and advisedly picked up by the Founding Fathers from Article 14 of the Government of India Act of 1935 — a crucial article designed to give the Secretary of State for India absolute power to supervise, direct and control the functioning of the Governor General of India, who was authorised even to act “in his discretion” and “exercise his individual judgment”. In fact, the Supreme Court has already held that the power of the Commission in the superintendence, direction and control is unfettered and over-riding. Parliament has, no doubt, been empowered to legislate on certain aspects of the elections, such as making provision with respect to elections to the legislatures. But the crucial point here is that all such legislation is subject to the absolute power accorded to the Election Commission to conduct a free and fair poll.
In practice, the three words – superintendence, direction and control — also give the Election Commission two vital far-reaching rights: to virtually legislate and to be informed. The CEC is empowered to implement the legislation through “superintendence”, legislate in effect through “direction” and interpret the legislation through “control”. Every little detail in regard to the conduct of elections comes under his overall control, direction and superintendence through section (6) of Article 324 of the Constitution which provides: “The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1)”. (Italics mine) The word staff does not mean merely officials or clerks of the State, contrary to an interpretation by some who should know better. The word embraces everyone under the umbrella of either the Centre or the State Government, including the civil services, police and the army.
Not just that. One other important authority flows from the CEC’s powers of “superintendence, direction and control” — the basic right of information. This may cause some eyebrows to go up. But the question is: Can the CEC exercise his powers of “superintendence, direction and control” without the right to be informed? Again, ne right to be informed carries the right to question and, by implication, to control and direct, as in the case of Parliament’s sovereign right to know through its Question Hour. Churchill is said to have asked Lord Mountbatten only one question when the latter sought his advice about whether or not he should accept Governor-Generalship of India following independence: “Will you have the right of information”? When Mountbatten replied in the affirmative, Churchill said: “Fine. Go ahead”. India’s Presidents continue to enjoy the same right. Regrettably, however, it has seldom been enforced. Acting President B.D. Jatti exercised the right in 1978 and created a sensation. Remember, the Janata Government then wanted him to promulgate an ordinance to dismiss nine State Governments. He queried: Why?
Unknown to most people, the CEC has exercised the right to be informed all along — as also his powers of superintendence, direction and control. Prior to the 1980 general election, for instance, Mr. S.L. Shakdher, one of India’s great CECs, established the practice of convening meetings of all the Chief Secretaries and L-Gs of Police in the States for ensuring a free and fair poll. Earlier, in the historic parliamentary by-election from Chikamagalur in 1978, Mr Shakdher ordered the State Government to withdraw some of the police force in the constituency following allegations that deployment of excessive force was likely to vitiate the poll. Thereafter, he got the CRP and BSF units posted in Chikamagalur when the Opposition represented that the local force under the Congress Government was “biased” in favour of Indira Gandhi. Significantly, Mr Shakdher then ruled that the police force in a constituency should be adequate to ensure a fair poll — neither too much, nor too little. Again during election time, namely from the day a poll is ordered to the day it concludes, the Commission is kept fully informed in regard to the law and order situation by the States.
In mid-1981, Mr Shakdher created a nationwide sensation by boldly exercising his powers of “superintendence, direction and control” and his right of information to countermand a key by-election to the Lok Sabha from Garhwal. The reason? The poll, he ruled, had been vitiated by the induction of police forces of Haryana, Punjab and Himachal into the Constituency without the prior knowledge of the Commission. Not a few then surmised that the CEC’s order was intended to help Indira Gandhi. It was even argued that had a repoll been ordered only in 56 polling booths, Mr. H.N. Bahuguna, who had fallen out with the then Prime Minister, would have won. Yet the criticism stemmed from ignorance of the Constitution and the CEC’s inherent right to be informed. The UP Government of the time slipped up badly, notwithstanding its right to handle law and order and, if necessary, to induct police forces from outside. Its request for additional police force was not made to the Centre. Instead, it was made directly to Haryana, Punjab and Himachal!
An angry Indira Gandhi justified the induction of the Haryana, Punjab and Himachal police on the ground that outside police forces had been used in the past for poll duty. She was undoubtedly right in what she stated. But, to set the record straight, outside forces were inducted only with the prior knowledge of the Commission. In the Garhwal case, the outside forces, from the Commission’s viewpoint, were inducted “surreptitiously”. Everything else was secondary — booth capturing, corruption and intimidation. That the Haryana police indulged in route marches to show who was in control was not viewed as being material to the fundamental issue: whether the induction of outside forces had vitiated the poll. Mr. Shakdher’s courageous decision at the time halted a new and dangerous trend. Had he not acted boldly, West Bengal would, for instance, have been justified in the years that followed in inducting police forces from friendly Marxist-ruled States of Kerala and Tripura. The CEC’s ruling thus not only upheld the independence of the Commission but also ensured a poll without fear.
Where do we go from here? Mr Seshan, as I said at the outset, has done well to have sought explanations from the Chief Secretaries of UP, Bihar and other States on the poll transfers. The Commission must be clear about its facts and not commit a faux pas like Tripura’s former Marxist Chief Minister, Mr Nripen Chakrovarty. (The former CM complained to the Commission that Mr Shyamal Ghosh, Chief Secretary-cum-Chief Electoral Officer in Tripura had been asked by the Congress -I State Government to proceed on long leave. But, as pointed out by the Deputy Chief Election Commissioner, Mr R.P. Bhalla, Mr Ghosh was not the Chief Electoral Officer at that time. In case a free and fair poll has been vitiated in UP, Bihar and elsewhere, the transfers must be revoked. Mr Seshan needs to act with the courage shown in his time by Mr Shakaher, remembering that the poll was in process the very day the President dissolved the Lok Sabha and directed that the new House be constituted by June 5. It is clearly time to stem the rot in regard to another perilous tendency in the interest of a free and fair poll. — INFA