The Election Commission: A Toothless Tiger?
For a democratic country like India, conducting free and fair elections is crucial for its very survival. This monumental task is assigned to the Election Commission of India (“EC”) under Article 324 of the Constitution. The Election Commission has always taken pride in successfully conducting free and fair elections across the length and breadth of the country, however there are certain issues which plague its regulatory machinery. For instance, the ability of the Election Commission to take action against violations of the Model Code of Conduct (“MCC”) was questioned several times in the run up to the 2019 General Elections.
Article 324 states that the “superintendence, direction and control of elections”[i] vests in the Election Commission of India. These words are not defined by the Constitution thus, calling for judicial intervention in the matter. The Supreme Court stated that Article 324 operates in an “area left unoccupied by legislation”[ii]. The Court concluded that the framers of the Constitution left it to the wisdom of the Election Commission of the time, to deal with the innumerable issues or problems that may arise. However, the EC has, of late, failed to match up to the expectations of the framers. It recently submitted before the Hon’ble Supreme Court that its powers with respect to controlling communal and hate speech were limited[iii], thus effectively calling itself ‘toothless’.
Appointment and Removal of Members of the EC
In India, the Election Commission consists of a Chief Election Commissioner (“CEC”) and some other members, known as Election Commissioners.[iv] They are appointed by the President of India and the Parliament fixes the terms and conditions of their service.
The key issues prevailing in the functioning of the Election Commission include the fact that the EC is no longer seen as a body independent in its functioning, primarily because several retiring Government officials are appointed to the post of the CEC. This gives an impression of bias towards the incumbent government, even if there is none and thus, leads to a loss of public confidence in the Commission. The procedure of the appointment of the CEC and the Election Commissioners is hence an issue that requires reform in order to regain the public trust, as the prevailing mechanism raises serious doubts on the efficient functioning of the EC and the political interference to which it might be subject.
In 2015, the Law Commission recommended a collegium system comprising the Prime Minister, the Leader of Opposition in the Lok Sabha and the Chief Justice of India. According to the recommendation, the President must appoint the members of the EC in consultation with said collegium.[v] In 2018, a Private Member Bill tabled in the Lok Sabha, proposed amending the appointment procedure by creation of a four-member panel of the Prime Minister, the Leader of Opposition in the Lok Sabha, the Speaker and the incumbent CEC.[vi] The Bill was, however, not passed.
The need of the hour is an appointment process, which not only ensures the neutrality of the EC, but also ensures its neutral appearance. De-politicization of the process is essential for its neutral appearance.
As for the removal of the CEC and the other Election Commissioners, they have a tenure of 6 years, which can be cut short by their removal. While the CEC can only be removed from office by the same procedure by which a judge of the Supreme Court can be removed; the Election Commissioners can be removed on the recommendation of the CEC. Although this is done to ensure the independence of the institution, the lack of serious protection to the Election Commissioners, due to the immense power handed to the CEC to recommend their dismissal, poses a question on this same independence. In the case of TN Seshan, Chief Election Commissioner v. Union of India[vii], the Supreme Court held that the recommendation should be based on “intelligible and cogent considerations which would have relation to efficient functioning of the Election Commission.” In this case, the Supreme Court also held that the CEC does not have a superior status and is nothing more than a ‘first amongst equals’. In light of this interpretation, the Constitution should be amended to accord the same protection from removal to the Election Commissioners, as is accorded to the CEC.
Lack of Weapons in EC’s Arsenal
Another key issue is the fact that the EC lacks the machinery to fulfil all that is required of it. For example, under the Representation of People Act, 1951, the EC is the registering authority for all political parties, which been expressly provided under Section 29A of the said Act but the power to register does not carry with it the ancillary power of de-registering a political party. At present, there are 2000 political parties registered with the EC, out of which, several never contest elections or submit their accounts and exist merely for the purposes of money laundering.[viii] Despite this, the EC lacks the power to deregister the parties.
Another example of the EC’s lack of appropriate machinery and power is with regard to the institution’s attitude towards violations of the Model Code of Conduct. A fundamental function of the EC is to regulate the conduct of political parties through the MCC, in the run up to any elections. Though the EC has put in place a remarkable MCC, it has lacked on all fronts when the question has been raised about its actual implementation. The EC was recently pulled up by the Supreme Court as no action was taken by the Commission even though hate speeches took place across the country and even as votes were appealed to in the name of religions and communities. The EC in its reply to the Court said that it was powerless, that it could merely issue notices, advisories and in case of repeated violations, file complaints. This reply caused the Supreme Court to comment that the EC “can bark but not bite”. [ix]
A prime reason behind this is the fact that the MCC has no statutory backing and is not enforceable by law.[x] It is expected out of the political parties to follow the MCC on a moral basis. In 2013, the Standing Committee on Personnel, Public Grievances, Law and Justice recommended making the MCC legally binding by adding it to the Representation of People Act, 1951.[xi]
It is these ‘lack of weapons’, ones which are crucial for the effective functioning of the EC, which makes it ‘powerless’, thus adding to its ‘toothless’ image.
Trust Deficit in the Election Commission
For the efficient functioning of a democracy, independent institutions to maintain a system of checks and balances; and trust between the various stakeholders is a must. Earlier, the trust deficit was limited only to political leaders and the voters. However, it has now spread to a poisonous combination of deficit between the EC, voters and the political parties. The deficit began with the EVM/VVPAT (Voter Verified Paper Audit Trail) saga and spread due to inaction on part of the EC against the ruling party’s leaders.
A group of sixty-six retired bureaucrats and diplomats wrote to the President that the EC was suffering from a “crisis of credibility”, stating that the EC is failing to discharge its constitutional responsibilities.[xii] What triggered this was the inaction on the part of the EC against the incumbent government, thus failing in its responsibility of creating a fair level playing field for the elections. The Prime Minister repeatedly invoked the Indian Army for votes while the Indian Railways served tea in cups adorned with the BJP campaign slogan. The EC also faced distrust over ignoring complaints against PM Modi and Amit Shah. The PM and Mr. Shah were given clean chits in each of the complaints against them.[xiii] It was also surprising that the dissent of Mr. Ashok Lavasa, Election Comm. was not made public.[xiv] This has created a cumulative effect where the EC has failed to ensure that a level playing field in the great Indian election exercise be afforded to all candidates. As a result, its independence, impartiality and integrity stand questioned today.
The powerless regulatory mechanism of the Election Commission poses a detriment to the effective conduct of elections in the country. The public image of the EC has deteriorated steeply due to this ineffectual functioning and their own submission of the same before the Supreme Court[xv] has not helped matters either. A series of reforms are required to strengthen the office of the Election Commission in order for it to serve its constitutional purpose. The Law Commission in its 255th Report[xvi] recommended three changes for this: firstly, awarding constitutional protection regarding removal to the Election Commissioners; secondly, altering the appointment process from a system of unilateral appointment to a consultative process and; thirdly, creating a permanent, independent secretariat of the EC. Most importantly, it is imperative to restore trust in the Election Commission, for it is the guardian of elections in India, the very foundation of Indian democracy.
[i] The Constitution of India, 1950, art. 324.
[ii] Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851.
[iii] Faizan Mustafa, “An Expert Explains: Article 324 and role of Election Commission”, The Indian Express, 16 June 2019, available at https://indianexpress.com/article/explained/article-324-and-role-of-election-commission-india-5731889/.
[iv] The Constitution of India, 1950, art. 324.
[v] The Law Commission of India, Two Hundred and Fifty-Five Report on ‘Electoral Reforms (2015)’.
[vi] “Committee with PM, Opposition leader should choose CEC: Private member’s bill”, The Economic Times, 23 May 2018, available at https://economictimes.indiatimes.com/news/politics-and-nation/committee-with-pm-opposition-leader-should-choose-cec-private-members-bill/articleshow/64289324.cms?from=mdr.
[vii] TN Seshan, Chief Election Commissioner v. Union of India, (1995) 4 SCC 611.
[viii] Anuradha Raman, ‘Is Election Commission of India toothless or is it refusing to bite?’, (2019), The Hindu, available at https://www.thehindu.com/opinion/op-ed/is-the-election-commission-toothless-or-is-it-refusing-to-bite/article26878777.ece.
[ix] Uttam Sengupta, “How ‘weak’ is the Election Commission?”, (2018), National Herald, available at https://www.nationalheraldindia.com/opinion/how-weak-is-the-election-commission.
[x] Roshni Sinha, ‘Model Code of Conduct and the 2019 General Elections’ (2019) PRS Legislative Research, available at https://www.prsindia.org/theprsblog/model-code-conduct-and-2019-general-elections.
[xi] Department related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, Sixty-One Report on ‘Electoral Reforms- Code of Conduct for Political Parties & Anti Defection Law (2013)’.
[xiii] Sahil Joshi, ‘RTI Reply on Election Commissioner Ashok Lavasa’s dissent note could endanger life: ECI’, (2019), India Today, available at https://www.indiatoday.in/india/story/rti-ashok-lavasa-dissent-note-endanger-life-election-commission-india-1550782-2019-06-17.
[xiv] ECI Order No. ELC/LS/G.E./MCC/Comp.Regi./No.11/2019, available at https://cvigil.eci.gov.in/uploads/references/207620/207620_8421_1554633254_decision.pdf.
[xv] “SC told EC is ‘toothless’ on hate speech”, Business Standard, 15 April 2019, available at https://www.business-standard.com/article/news-ians/sc-told-ec-is-toothless-on-hate-speech-119041500354_1.html.
[xvi] The Law Commission of India, Two Hundred and Fifty-Five Report on ‘Electoral Reforms (2015)’.
By Stuti Srivastava and Tathagat Tiwari, Junior Editors, RSRR