By Inder Jit
(Released on 21 July 1981)
Wild stories about the Garhwal poll and the repoll order continue to go the rounds. I heard many in the Kumaon hills during a ten-day sojourn in the beautiful hill resort of Naini Tal — and I have continued to hear them following my return to New Delhi. One story now circulating in the capital beats all others hollow. It would have us believe that the Chief Election Commissioner’s order was intended to help the Congress (I). According to the story, had a repoll been ordered only in 56 polling booths, Mr. H.N. Bahuguna would have won! Gossip, nice and spicy, is a part of the Indian way of life. But one thing bothers me and others who are anxious to see India’s young democracy take firm roots and be an example not only for the newly-Independent countries of Asia and Africa but for the entire world. Four weeks after the repoll order the basic issues involved and the considerations which weighed with the Chief Election Commissioner, Mr S.L. Shakdher, are not adequately understood – even by some among the highest in the land.
True, Mr Shakdher’s order has been generally described as bold and a welcome assertion of the Election Commission’s independence at a time when doubts were being cast on its integrity and impartiality by all manner of attacks and innuendos. Some well-informed and respected individuals have described it as great and historic – “the second bold order” after Mr Justice Sinha’s judgement of 1975 in Mrs Gandhi’s election case. Nevertheless, there are others who have described the order as “very sketchy and even illogical.” The Prime Minister’s own remarks at her recent Press conference have not helped to clarify matters fully even if some of her observations deserve to be welcomed. Mrs Gandhi said there was no question of going in for a confrontation with the judiciary or the Election Commission. She also ticked off some of her colleagues for talking in terms of curbing the powers of the Commission. The statements of some “who should stick to their jurisdiction”, she said, had not been fortunate. But she also justified by implication the induction of police forces of Haryana, Punjab and Himachal into Garhwal.
First, the Founding Fathers of the Constitution were clear that free and fair elections were the bedrock of any democracy and went ahead to create an independent Election Commission which would function without fear or favour.
Several basic questions have been asked. Who is to decide the deployment of the police force in a state during an election – the State Government or the Chief Election Commissioner? Is law and order the exclusive responsibility of a State Government or is it not? (At one stage, Parliament found itself barred from discussing the law and order situation in a State as under the Constitution the subject is in the State list.) If so, has the Chief Election Commissioner gone beyond his jurisdiction in ordering a repoll in Garhwal on the ground that an outside police force had been inducted into the Constituency without his knowledge and had vitiated the poll? Has the Chief Election Commissioner the right to be informed about the induction of an outside police force or excess force. Where does this right flow from – the Constitution, election laws or conventions? Should the Chief Election Commissioner have laid greater emphasis on annulling the poll on the basis of corruption and intimidation? Should he have first gone into the allegations of booth capturing by the Congress (I) before giving his order? What is his proper ambit?
To begin from the beginning. First, the Founding Fathers of the Constitution were clear that free and fair elections were the bedrock of any democracy and went ahead to create an independent Election Commission which would function without fear or favour. Accordingly, Article 324 (1) of the Constitution provides “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 this Constitution shall be vested in a Commission (referred to in this Constitution as Election Commission)”. But all this would have been meaningless without ensuring the independence of the Chief Election Commissioner. Therefore, the Founding Fathers also provided under Section 5 of the same Article that “the Chief Election Commissioner shall not be removed from his office except in like manner and in like grounds as 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.”
The power 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 words were deliberately and advisedly picked by the Founding Fathers from Article 14 of the Government of India Act of 1935 — a key Article designed to give the Secretary of State 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 legislatures. But the crucial point here is this: 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 Chief Election Commissioner is empowered to legislate through “direction”, implement the legislation through “superintendence” 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).” 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 police and the army.
Some people have made light of Mr Shakdher’s basic emphasis on his right to be informed about the induction of outside police force into Garhwal. But the criticism stems from ignorance of the Constitution and the implications of the right to be informed. The right flows from the Constitution itself. How else does the Election Commission exercise its powers of superintendence, direction and control? Again, the right to be informed by a statutory authority contains far-reaching implications. It carries the right to question and, by implication, to control and direct, as in the case of Parliament’s sovereign right to know, which makes the question-hour sacrosanct. 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: “Have you the right of information?” When Mountbatten replied yes, Churchill said: “Fine. Go ahead.” India’s President continues to enjoy the same right. Alas, however, it has seldom been exercised Acting President B.D. Jatti exercised it in 1978 and created a sensation and a major problem for the Janata Government which then wanted him to sign an Ordinance to dismiss nine State Governments.
Unknown to most people, the Chief Election Commissioner 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, he convened meetings of all the Chief Secretaries and I-Gs of Police to consider the deployment of the police forces and take decisions in the best interest of 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 when it was alleged that excessive force was likely to vitiate the poll. Thereafter, he also advised the induction of CRP and BSF units when the Opposition represented that the local force under the Congress Government was “biased” in favour of Mrs Gandhi. Significantly, Mr Shakdher then ruled that the police force in a constituency should be adequate to ensure a fair poll — not too much, nor too little. Again, during election time, namely from the day a poll is ordered to the day it concludes, the Commission regularly received daily reports on the law and order situation from the State authorities. The Commission received such report during the recent by-elections also.
The Chief Election Commissioner has acted honourably and courageously. He has upheld the independence of the Commission and ensured a poll which is not only free and fair but also without fear. Above all, he has demonstrated that India’s Constitution is basically sound. What is required are right men in the right places to work it.
The Chief Election Commissioner has not challenged the constitutional right of a Government to handle law and order or to induct police forces from outside if the situation so warrants. That was never his case. But it is surely his case that he has a right to be informed if a police force from outside is to be inducted. The UP Government slipped up in not informing the Commission. Matters were made worse on two other counts. First, the District Magistrate of Pauri Garhwal, who is in charge of law and order, never asked for any additional force. Second, the Commission, following allegations by Mr Bahuguna, called for a report from the UP Government to know why the Commission had not been informed about the induction of forces from outside and the circumstances in which this was done. But there was no reply till the hour Mr Shakdher ordered the repoll. Some other questions remain unanswered. Why did the Centre not provide CRP and BSF units for poll duty in response to the request reportedly made by the UP Government? Why was the request directed to Haryana, Punjab and Himachal? And, why was the Election Commission not informed either before or after?
The Prime Minister is right when she says that outside police forces have been used in the past for poll duty. But, to set the record straight, this was done with the knowledge of the Commission. In the Garhwal case, the outside force, from the viewpoint of the Commission, was inducted “surreptiously”. This basically vitiated the poll. Everything else was secondary — booth capturing, corruption and intimidation. That the Haryana police indulged in route marches to show who was in control or that the force threatened voters is not material to the fundamental issue. The crucial point is that the poll was vitiated. Mr Shakdher, therefore, did well to give a shock to the system and cry a halt to a new and dangerous trend. Tomorrow, for instance, West Bengal could well induct police forces from friendly, Marxist-run States of Kerala and Tripura. The Chief Election Commissioner has acted honourably and courageously. He has upheld the independence of the Commission and ensured a poll which is not only free and fair but also without fear. Above all, he has demonstrated that India’s Constitution is basically sound. What is required are right men in the right places to work it. — INFA