EC must assert its authority

The role of Election Commission has never been under scanner in the recent past like it has been during the current elections. Right from the delay in announcement of the poll schedule, to going lax over several apparent violations of model code of conduct to EVM glitches which are dime a dozen, the EC has been at the receiving end, especially that of the Opposition parties.

As the Great Indian election is underway, the guardian of the largest electoral show on earth has come under repeated scrutiny from many quarters. The number of times the Model Code of Conduct (MCC) has been breached with hate speech and electoral misconduct is certainly unprecedented. As is often the case, the ruling party is the leading offender.
The Election Commission is now coming around and asserting itself in accordance with the pious constitutional mandate that makes it the most powerful electoral body in the world. On April 18, UP Chief Minister Yogi Adityanath and Azam Khan of Samajwadi Party were banned from campaigning for 72 hours. BSP supremo Mayawati and minister for women and child development Maneka Gandhi were barred for 48 hours.
As is evident now, the assertion that the commission is toothless has no factual basis. The apex court just served to remind the EC of the powers it always had. All that is needed is strict enforcement of the model code.
Despite the EC having found its ground, talk about making the MCC into law refuses to go away. It is a highly counterproductive suggestion. Firstly, it is nothing but a clever ploy which will take away the EC’s discretion and transfer it to the judiciary. The result will be long-drawn legal battles, defeating the purpose of the MCC. Right now, the Model Code is like a fire brigade —  dousing fire then and there, and not after five or 10 years.
Secondly, its moral authority should not be underestimated even if the ultimate punishment is advice, warning, censure or reprimand. This is because it influences public opinion. The moment a leader receives a notice, it is all over the media. Leaders are generally scared of getting censured under the MCC. Historically, even advisories for senior politicians have been sufficient because of their naming and shaming effect, which works better than legal sanction.
Third, a significant part of the model code is already backed by different laws like the Representation of the People Act, the Indian Penal Code, the Conduct of Election Rules or the Election Symbols Order. Action can be simultaneously taken under these in case of a violation. The only difference is that the impact of the action will be visible after long, whereas notice under the model code gets instant response.
Some continue to cast aspersions on the commission for delayed action. Had the commission acted promptly, it would not be in the dock right now. But the crucial thing to see is that EC has been accused many times in the past too of being soft on the government, due to the manner of appointments of the Chief Election Commissioner and the Election Commissioners.
It is because of the lingering issues of credibility and public perception about the commission that there needs to be a collegium for appointments of the CEC and the ECs. A broad-based collegium consisting of the Prime Minister, Leader of the Opposition and the Chief Justice of India has to be the way forward. The same is backed by the 255th Report of the Law Commission, besides former chief election commissioners, civil society and political stalwarts such as L.K. Advani.
Besides the manner of appointment, the system of removal of Election Commissioners also needs review. Only the CEC is protected from removal except through impeachment. The making of the commission into a three-member body was the nicest reform with the other two commissioners having equal voting powers. But the uncertainty of elevation by seniority makes them vulnerable to government pressure.
The government can control a defiant CEC through the majority voting power of the two commissioners. One has to remember that the days of the one-man commissions are behind us. The same level of protection must now extend to all three, as they collectively represent the ECI. The public perception is paramount for any election management body, more so in case of the greatest in the world. Not only does it have to be fair, it has to appear to be fair at all times.
While the collegium may have its question marks, it is far better than the status quo. Everywhere in the world, such appointments are made by either parliamentary committees or a collegium. In some cases there is a live interview of the candidate so that the whole nation is privy to the appointment. It is ironic that that the most powerful election monitoring body has the most flawed system of appointments.
Another major issue is of recalcitrant political parties. We have nearly 2,300 parties at present, many of which are bogus; they only exist for money-laundering purposes. This is because despite being the registering authority under Section 29A of the Representation of the People Act, 1951, the commission has no power to deregister them even for the gravest of violations. The EC has been demanding this power in vain. The reform was first suggested by the CEC in 1998 and has been reiterated several times since then.
It is very unfortunate that the hot topic of debate now is the commission, rather than the appalling and unconstitutional conduct of our leaders. Over 40 electoral reforms remain pending for two decades. While these reforms are debated, the EC must continue to act with authority as the special child of the constitution. It should not need any more reminders or a nudge from the Supreme Court. The public trust it has earned through the decades by dint of its exemplary conduct must not be allowed to be diluted.

(The writer is a former chief election commissioner and author of An Undocumented Wonder — The Making of the Great Indian Election and Editor of The Great March of Democracy — Seven Decades of India’s Elections.)