Above: Prime Minister Narendra Modi (centre), BJP president Amit Shah (second from left) and others at the Gujarat Gaurav Maha Sammelan in Gandhinagar. Photo: UNI

Has Election Commission of India compromised itself by deferring the Gujarat polls and thereby opened itself to the charge of being partisan?

~By MG Devasahayam

The Constitution, which is India’s charter of governance, not only provides for the legislative, executive and judicial organs of the government (central and state), but also establishes certain independent and autonomous bodies to perform specific tasks. The Election Commission of India (EC) is the most prominent of them.

The Constitution mandates the EC with preparing, supervising and controlling all elections to the parliament and state legislatures as well as those of the president and vice-president. In Mohinder Singh Gill vs Chief Election Commissioner, the Supreme Court ruled that Article 324 is a reservoir of power to act for the avowed purpose of pushing forward a free and fair election with expedition. It said: “The Commission shall be responsible for the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fair play-in-action in a most important area of constitutional order, viz, elections.” In a catena of cases, the apex court observed that fair and free elections are a basic feature of the Constitution.

In order to perform this exalted role, the EC has been given the same status as that of the Supreme Court. To prevent arbitrary and autocratic functioning, the EC was made a three-member body first in 1989 and again in 1993, this time to subdue Chief Election Commissioner (CEC) TN Seshan, who knew and asserted the constitutional authority of his office, making politicians see red. This arrangement continues till date and Election Commissioners are on a par with apex court judges with the CEC enjoying the same constitutional protection. It is, therefore, imperative on the part of the EC to ensure electoral integrity by all means and not be influenced by the government of the day.

Yet, this is what the EC seems to have done when it broke convention on October 12, 2017, by not announcing polls in Gujarat along with Himachal Pradesh, even though the terms of both assemblies expired within two weeks of each other.

NO FAIR PLAY?

Stating that this raised some serious questions, former CEC SY Quraishi wondered why the Commission should wait to announce dates for Gujarat when the terms of both the assemblies are almost coinciding.

Incumbent CEC AK Joti, defending the decision, said this was done to avoid an unreasonably long imposition of the Model Code of Conduct (MCC) in the state. The election timetable, Joti said, should ideally not exceed 46 days. Another factor that influenced the decision, according to him, was the Gujarat chief secretary’s letter seeking more time before the election announcement as the MCC would disrupt flood relief in the state.

Quraishi retorted: “CEC has already clarified that voting in Gujarat will wind up before Himachal results are announced. If that’s the case, then Gujarat votes will be counted within a week of Himachal, if not on the same day. So how many days of MCC have you spared Gujarat? A week, maybe? What does that really achieve?” Joti had no answer.

EC’S SHALLOW CLAIMS

Though Joti has denied that there is any relation between the Commission’s decision to defer the announcement of the Gujarat polls and Prime Minister Narendra Modi’s election visit to Gujarat on October 16, it seems shallow. This is reflected in the hectic activities in the state soon after the EC’s controversial decision. On the same day, the BJP-ruled Ahmedabad Municipal Corporation (AMC) cleared proposals worth Rs 530 crore in just 10 minutes. The AMC also concluded the ninth Shahri Garib Kalyan Mela where 3,262 beneficiaries were distributed kits, including cheques, funds and bonds under the Manav Garima Yojana.

There have been many other events in Gujarat wherein pre-election largesse was dished out. The BJP-ruled Vadodara Municipal Corporation organised a mega event on October 15 where Chief Minister Vijay Rupani inaugurated development works worth Rs 780 crore. It also approved extending free logistical services to Sri Sri Ravishankar’s Diwali event.

As scheduled, Modi visited Gujarat on October 16 and addressed a massive rally on the conclusion of the two-leg Gujarat Gaurav Yatra (march for Gujarat’s honour). This yatra is part of the pre-election campaigning and senior party leaders participated in the 15-day march, covering a distance of around 4,471 km spread over 149 of the 182 assembly constituencies in the state. He also addressed a gathering at the Gujarat Gaurav Mahasammelan organised by the state BJP.

Modi will again visit the state to dedicate the Ghogha-Dahej ferry service connecting the Saurashtra and south Gujarat regions over the sea ahead of the assembly elections. All this is happening because party functionaries as well as state officials are confident that the Gujarat poll dates will not be announced before October 23.

Incidentally, Joti belongs to the Gujarat cadre of the IAS, and has held several coveted positions in the state including chief secretary during Modi’s chief ministership. It looks as if the EC has opened itself to the charge of “fence eating the crops”.

ARBITRARY FUNCTIONING

Even otherwise, for some time now, one could discern a certain arbitrary way of functioning in this watchdog of India’s democracy. It all started when complaints of tampering with EVMs surfaced during the recent assembly elections in UP and Uttarakhand. The EC dismissed the allegations as baseless, speculative and wild. To drive home the point, the Commission challenged political parties to prove that EVMs are tamperable and set the date as June 3, 2017. This came to be known as EVM “hackathon”.

The EC held the “challenge’” with only two small political parties—the NCP and the CPI(M)—attending the event. It got 14 EVMs for use during the challenge but refused to give the access code and share the memory and battery numbers of the machines. In the event, the much-hyped “challenge” turned out to be a damp squib.

Election Commissioners are on a par with apex court judges with the CEC enjoying the same constitutional protection. It is, therefore, imperative on the part of the EC to ensure electoral integrity by all

Even then, the EC had armed itself with a stringent mandamus in favour of EVMs and a gag order against its criticism from the Uttarakhand High Court. This order verbatim reproduced the press release issued by the EC on May 20, 2017, soon after the controversy arose. Certifying that EVMs are not hackable and tamperable, the High Court order went on to say that EVMs use some of the most sophisticated technological features. The judges barred all political parties, individuals, media and even social media networks from criticising the use of EVMs.

The EC claimed a one-sided victory in the non-event and declared that the issue of tamperability “stands closed”. It invoked the Uttarakhand HC order and warned that in the event of any party violating it, the “EC will take an appropriate decision”.

EVM CASE

Strangely enough, the EC has been consistently refusing to even consider the “democracy principles” as laid down by the German Federal Court against which EVMs were to be tested: (1) All essential steps in the elections are subject to public examinability (2) Ordinary citizens should be able to check the essential steps in the election act and in the ascertainment of the results reliably and without special expert knowledge.

On these counts, EVMs fail. Given their fallibility, advanced democracies have abandoned them and returned to the paper ballot. By sticking to these machines, the EC is giving out a disturbing message—that “technology” prevails over “democracy”.

This is akin to Prime Minister Indira Gandhi proclaiming during Emergency: “Bread is more important than freedom”!

Anticipating strident criticism on many fronts, the EC wants to arm itself with contempt powers to send critics to jail. For that purpose, it wrote to the Union Law Ministry seeking amendments to the Contempt of Courts Act, 1971, to empower it to punish anyone questioning or criticising it or disobeying its authority. In support, the EC cited the example of Pakistan’s Election Commission which is stated to have such powers!

What a fall, my countrymen!

 —The writer is a former Army and IAS officer