Saturday, March 03, 2007

Election Commission of India's non-transparent role

India has just completed assembly elections in Manipur, Punjab and Uttarakhand. And India's largest State, Uttar Pradesh is going to the polls in May-June. As usual, the Election Commission - independent three-member body to conduct and supervise elections - is sure to bag all the credit for the free and fair polls. But it is amazing to witness media's lack of interest in some of the crucial decisions that the E.C. takes. In 2005, the E.C. decided to bring all the polling stations in all the assembly constituencies in West Bengal under the control of the Central Para Military Forces (CPMF), completely keeping out the state police from manning the polling stations. The unstated reason was that the E.C. wanted to ensure a complaint-free election. Similarly, in the ensuing U.P.assembly elections - faced with the complaints that the present care-taker Government of Mulayam Singh Yadav may not ensure an impartial policing during the polling process - the E.C. appears to have decided to bring 95 per cent of the polling stations in the State under the CPMF. The decision in West Bengal invited a sharp rebuke from the CPI(M) which won the elections there, in the form of a comprehensive note. The basic thrust of the note was that the E.C. undermined federalism, by suspecting the role of the state governments selectively, and imposing the CPMF on the state, thus conveying total lack of trust in the state police. In the West Bengal elections, the E.C. could not manage the availability of CPMF during the last phase, and had to bring in the state police, thus rendering its own decision impractical. If so, why alienate the state police in the first place, and lower their morale? Has not the E.C. learnt any lessons from this, while taking a similar decision in U.P.?
Seeking to break the E.C.'s silence on the issue, I filed an application under the Right to Information Act, and wanted to know the reasons for the E.C.'s decision in West Bengal. The answer was that the E.C. did not have any file notings on this, and that the decision was taken on the assessment of the "ground situation". Can there be a vaguer reply than this? Is not the E.C. accountable for its decisions, and bound to give specific reasons for its decisions? Hopefully, my appeal to the Central Information Commission will provide the answers.

3 comments:

Sunanda Bharti said...

Interesting piece. There are several points rolled in one that you seem to be making here...starting from lack of media attention to the way the EC monopolizes (in an almost autocratic fashion) its functioning to the outright embargo placed on the State police by the EC and finally the vagueness of reasons, if they can be called as that, by the EC for their actions...
I would like to share a few muses with you just focusing on the role of the EC which seems to be disturbing you:
True, the EC, as the Constitution envisages it, is a very powerful body. It has one enormous responsibility placed on its shoulders: the task of holding free and fair elections in the world’s biggest democracy. We teach this ideal/concept of democracy with that characteristic academic flair in our classes, but fail to understand how difficult it is to bring about/create a situation that is truly democratic...our own houses (which may easily be taken as smallest unit of this huge 'democratic society')do not function democratically, if you come to think of it! Just imagine how impossibly difficult it would be to bring about even some semblance of fair play into the election process…no one but the EC knows what it faces and undergoes to ensure that the cherished ideal of democracy is not lost. Considering the sheer enormity of the task at hand, if the EC adopts some measures that appear to be autocratic; if it is overcautious to the extent of being high handed; if it is deliberately vague or silent on certain volatile issues or if its actions reflect a dash of dictatorial streak…then I think we should give it to the body.
I think I was a bit out of context here, but I thought I should share my random thoughts.

Sunanda Bharti
Lecturer, Law Centre-I
University of Delhi

Arun Thiruvengadam said...

Dear Mr. Venkatesan,

Ms Bharti's comment is similar to the feelings your post evoked in me.

While I appreciate your argument that the EC should be more open about its decision-making process, I have to say that I agreed with the actual decisions taken that you focus upon. I can understand how the EC's decisions do detract from ideal principles of Federalism, and are also not conducive to the building of confidence in the functioning of the police in various states.

Yet, the fact remains that the functioning of the police across India is, as you are well aware, in dire straits. (I haven't checked to see your articles on the Supreme Court's intervention on police reforms, but I hope to see your views as the case develops). Nithari is just the latest case of the many problems that afflict the police across India.

More specifically on the U.P. case, I don't see what other option exists. In the latest issue of Frontline, Praful Bidwai has an article setting out the various problems in U.P., and how the Mulayalam Singh govt. has colluded with the land mafia, increased corruption in the police, and led to a greater number of active criminal-politicians. All this was laid out by Jayanthi Natarajan and others in the debate over the use of Article 356 in U.P. I count myself as among the people who opposed the use of Article 356 on principle. Yet, we are not blind to the strength of the basic facts set out by those who argued for the use of Article 356.

In the face of these facts, if the EC did NOT take measures to rule out the supervision of elections by this extremely tainted police force, it would have had to confront far more sticky questions than the relatively principle-driven, constitutional arguments you are now posing.

One phrase which has become popular in these times of the 'war on terror' is : 'The Constitution is not a suicide pact.' While we may be committed to principles of constitutional government, we cannot be blind to ugly realities that stare us in the face. While not ideal, the EC's decision in U.P. may well be driven by pragmatic considerations.

I am sure you have considered this. I am curious therefore why you have chosen to argue the virtue of principle over pragmatism in this case (something I would normally support, but find it hard to do in this particular instance). Perhaps I am missing something, and I await your fuller thoughts on this,

Best,

Arun

Vivek said...

Very interesting debate. Mr. Venkatesan’s post and the CPI-M note shows contests for institutional space among constitutional bodies. Arun sees a conflict of principle over pragmatism. I am unable to appreciate which constitutional principle is being violated here. The supposed constitutional principle which the EC seems to have violated is undermining of the federal setup by not relying on the state police machinery. I cannot see any constitutional violation for the following reasons

First, under our constitutional scheme, the EC has been given the power and responsibility of holding free and fair elections. That’s the only job of the Election Commission. Article 324 uses extremely broad language while conferring power on the Election Commission. (“Superintendence, direction and control of elections to be vested in an Election Commission.”) If the Election Commission comes to the conclusion that the state police machinery is not reliable, it is constitutionally entitled to rely on central police machinery. I would even argue that the Election Commission is justified in relying on the central police just to convey an impression of free and fair elections. The key constitutional principle underlying Article 324 is that the Election Commission should have all the power required to hold free and fair elections. If in the process federalism is undermined, I don’t see any grave constitutional concern. It’s not the Election Commission’s duty to support or undermine the federal set up.

Second, I rely also on the constitutional design to support my argument. When the constitution makers designed the Election Commission, they vested the power to hold central and state elections in the Election Commission. See Article 324(1). If federalism was a concern, the power to hold elections would have been bifurcated between a central and a state agency (like the State election commission). They did not opt to do so. This reinforces my argument—the primary objective of the Election Commission is to hold free and fair elections. Yes, it should try to respect the federal structure as far as possible. But that should never come at the expense of discharging its primary objective of holding free and fair elections

On a related note, this was one of the key issues in the controversial decision of the US Supreme Court in Bush v. Gore (2000)—to what extent should the federal process be respected while deciding election disputes. What made the decision controversial was the majority Republican judges assertion that the Supreme Court is entitled to review a state court finding if there is an allegation of violation of equality (going against their past assertions about respecting states rights) and the assertion of the minority Democratic judges that the spirit of federalism must be respected in the electoral process (which also goes against their past assertions about giving higher weight to individual rights over states rights).

Such a controversy arises because of the language of the US Constitution which explicitly compels respect for federalism in the electoral process. Under the US Constitution, each individual state law governs with respect to election of the “electors” who in turn elect the President. See Art. II, §1, cl. 2 (“Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors”). And further any dispute on such election has to be decided under State law. (3 U.S.C. § 5) The Indian Constitution does not command such a respect for the federal process in holding the state or even the national elections.

Finally, I do agree with Mr. Venkateshan’s point that the EC must be an accountable institution. But accountability is a tricky question when it comes to constitutional bodies like the Election Commission and the judiciary—one cannot use the conventional accountability mechanisms when it comes to institutions whose functioning demands an independence from the democratic process in the very interests of democracy.
Yes, the EC should certainly give reason to Mr. Venkatesan’s petition. But again I wonder whether the Indian political culture has matured enough to accept a statement from the Election Commission saying that state policy machinery does not inspire confidence among the political parties and the people in holding a free and a fair election. Wouldn’t that undermine the morale of the State police?

Vivek

PS: Arun, please continue to posting. Its a pleasure to read your posts. I don't know if there is any other blog where there is such an intesresting substantive discussion on Indian Constitutional law. Hope to be more active on this blog