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Above: CEC Sunil Arora’s approach in dealing with MCC complaints from the Opposition parties was questionable/Photo: UNI

Despite the magnitude of the NDA win, many ordinary people continue to harbour doubts about whether the incumbent CEC Sunil Arora has lived up to the standards set by his predecessors

By India Legal Bureau

Governments routinely make appointments that end up being controversial. The appointment of Sunil Arora, a retired Rajasthan-cadre IAS officer, as the chief election commissioner (CEC) was one such that raised many eyebrows. Six months after his appointment, he has just presided over the most contentious general election that the country has ever seen.

The very nature of the CEC’s job is such that it is simply not possible to keep everyone happy. But Arora’s actions, or rather, the lack of them, have ensured that his tenure will go down in history as the most controversial ever. Former President Pranab Mukherjee was only partially right when he praised the Election Commission (EC) on May 20 for the conduct of elections, and then in less than 24 hours, lent his voice to the chorus of protests against the alleged tampering with the electorate’s verdict. His turnaround came even as 22 Opposition parties as well as citizen groups in many parts of the country drew the EC’s attention to reports of what appeared to be suspicious EVM movements in several constituencies.

They demanded verification of VVPAT slips before counting of votes and not after the last round of counting. Social media was flooded with pictures and videos of EVMs allegedly being shifted around. These were brought to the EC’s notice but little was done about it. This left Opposition leaders wondering if there was a level playing field.

Earlier this month, the EC, without batting an eyelid, had disposed of a complaint against the Prime Minister (PM) for allegedly misusing the facilities and personnel of the NITI Aayog, the government think-tank that replaced the Planning Commission in 2015, during the campaign. The Congress party’s complaint was that the PMO had directed the NITI Aayog to write to bureaucrats at places where the PM was scheduled to campaign, and ask them to send local area knowledge ahead of his visits there. This was specifically in three constituencies in Maharashtra–Gondia, Wardha and Latur. But, addressing a press conference in mid-May, Deputy Election Commissioner Sandeep Saxena said that the EC found no merit in the complaint as the PM by virtue of instructions issued on October 7, 2014, is permitted to combine his official and electioneering visits. It later came to light that the clean chit was given despite one of the ECs, Ashok Lavasa, seeking further clarification on the matter from NITI Aayog CEO Amitabh Kant on whether they had actually followed the PMO directive and whether such information was used during the visit of Modi. The complaint was, however, dismissed as both Arora and the third EC, Sushil Chandra, were of the opinion that the “instructions” issued in October still stood and hence the charges were infructuous.

However, the same circumstances prevailed during the time of Indira Gandhi too and she was punished for her misdemeanour. Justice Jagmohan Lal Sinha of the Allahabad High Court declared her election to the Lok Sabha in 1971 void and disqualified her from Parliament and banned her from holding any elected post after her opponent, Raj Narain, filed a petition challenging her election for violating the Representation of the People Act, 1951. Chapter XV111, section 1.1 of the RPA, clearly states that “government officials at all levels…..should maintain an attitude of strict impartiality in relation to elections….that no Government officials should do any act (other than the giving of vote) which could be interpreted as furthering the prospects of any party or candidate at the election.” Narain’s contention was that her polling agent, Yashpal Kapoor, was a government servant and by using a public servant for personal election-related work, she was guilty of electoral malpractices.

The crux of the recent charges against the EC was that it had chosen to be a silent spectator to excesses of the BJP while being too eager to wield the stick against the Opposition. The violations, in fact, began immediately after the EC announced the schedule for the seven-phase elections. Leading from the front was the PM himself, followed closely by his party president, Amit Shah. They invoked the armed forces by asking voters to keep their “sacrifice” in mind. Former Karnataka CM BS Yeddyurappa even went to the extent of saying at a rally that the Balakot air­strikes would bring a lot of votes into the BJP kitty.

The EC’s reluctance to act despite the Supreme Court making the poll body conscious of its powers emboldened leaders and candidates. But invariably, those from the ruling side managed to get away while those from the Opposition were not so lucky.

Consider these: Samajwadi Party lawmaker Azam Khan was quoted commenting about his opponents’ undergarments for which he was promptly banned from campaigning for three days. But when UP CM Yogi Adityanath invoked religious sentiments and took Bajrang Bali’s name as a counterpoint to Ali or referred to the Indian Army as “Modiji’s Sena”, he got away with a minor rap on the knuckles. Rahul Gandhi was pulled up for misquoting Modi, but the latter was cheered when he questioned the presence of “Pakistani flags” in Wayanad, the second seat Rahul was contesting, besides Amethi. Modi had said that Rahul was afraid to contest from a Hindu-majority constituency and had therefore chosen the seat in Kerala where Muslims outnumber the Hindus. Modi was to repeat his “minority-majority” jibes against Rahul on many occasions. For that and his invocation of Balakot, complaints were lodged with the EC. The Congress alone had given 37 representations to the EC against Modi and Shah, of which 10 can be categorised under “hate speeches, virulent, divisive, polarising” by Modi and Shah.

And what was the action taken? A clean chit to the PM and his lieutenants. However, this led to a rift within the EC after the CEC refused to place on file the dissenting remarks of Lavasa. Lavasa, a retired Haryana-cadre IAS officer, had recused himself from the meetings to discuss alleged violations of the model code of conduct as a mark of protest against the exclusion of his minority view in the EC’s official orders. While EC rules are silent on the matter of recording dissent, former CEC OP Rawat felt that “if an opinion is recorded that differs from the final decision, the differing opinion is recorded as dissent”. Ex-CEC SY Quraishi too tweeted: “The dissenting note need not be included in the order but it should be a part of office proceedings. And be made public if the commissioner concerned wants it.” But it made little dent.

Arora’s elevation as CEC last December at a politically critical juncture wasn’t entirely surprising considering that his career graph has witnessed upswings under BJP governments, be it at the centre or in his cadre state of Rajasthan. He has had brushes with controversy, the most notable being in 2009 when the infamous Radia tapes caught him chatting with Niira Radia about corruption in the Judiciary. Arora was heard telling the corporate lobbyist about a Supreme Court judge’s role in the Delhi land sealing cases and of another judge from the Delhi High Court being paid Rs 9 crore by a middleman in exchange for a favourable verdict in a case. Similar conversations caught on tape have led to powerful people, including some in the media, losing their jobs. But Arora, then an additional secretary-rank officer, went unscathed yet again. Earlier, as Indian Airlines’ chairman-cum-managing director, he survived several skirmishes with Praful Patel, Rajiv Pratap Rudy and Shanawaz Hussain, all ministers who held the aviation portfolio.

Nirvachan Sadan has had controversial CECs before. Yet, they were different and never so openly partisan. Former CECs, such as TN Seshan and James M Lyngdoh, were also efficient administrators. Seshan held office between 1990 and 1996, six years that saw elections being cleaned up. A no-nonsense officer, he endeared himself to the aam aadmi by wielding the stick against politicians, however high and mighty. But he had his downside too. He was a favourite of Rajiv Gandhi and at his bidding, kept a hawk’s eye on VP Singh’s Janata Dal and was known to have even deferred or cancelled elections where Singh’s party had frontrunner status.

Seshan was also unpredictable. He displayed this trait by cancelling the Punjab assembly elections when only a few hours were left for the polling to begin. In 1992, a few Opposition parties called for impeachment proceedings against him, but the then PM, PV Narasimha Rao, would have none of it.

His unpredictable and arrogant nature finally led to the government expanding the EC to three members in 1993. Seshan challenged the appointment in the Supreme Court, but the Court not only held the appointments valid, but directed that in order for any decision of the EC to be valid, it must have the backing of at least two members. As CEC in 2002, Lyngdoh, too, had a run-in with Narendra Modi, then Gujarat CM, which finally saw the Supreme Court stepping in.

Seshan, Lyngdoh and others who followed did not bend before the powers that be and ensured that the playing field was level and everyone adhered to the spirit and letter of the law. Despite the NDA’s spectacular win, millions of ordinary Indians will continue to harbour new doubts about the system and the process.

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