S. N. Misra
shok Lavasa, a member of the CEC, has given a dissenting note on the finding of the Chief Election Commissioner of India (CEC) that Prime Minister Narendra Modi has not violated the Model Code of Conduct in his speeches. He reportedly argued that the questions raised before the CEC, along with dissenting opinion, if any, should be put in the public space. On the other hand, the CEC Sunil Arora believes that the Commission’s decisions are executive in nature and should be wrapped up in confidentiality. This flies in the face of elementary logic as transparency is the bedrock of democratic discourse. According to Section 10 of the Election Commission Act 1991, “all business of the Election Commission shall, as far as possible, be transacted unanimously”. However, “if the CEC and other ECs differ in opinion on any matter, such matter shall be decided according to the opinion of the majority”.
The controversy is due to the many charges that Modi faces because of breaches of electoral law. A major case in point is Modi’s Wardha speech of April 11 where he has asked the audience not to forgive the Congress for insulting Hindus for coining the term ‘Hindu terror’. The PM seems to have breached three separate electoral laws. Section 1.3 of the Model Code of Conduct says “there shall be no appeal to caste or communal feelings for securing votes”. This is exactly what Modi sought to do at Wardha.
Further Section 123(3A) of Representation of People’s Act defines corrupt practice as any that “attempts to feeling of enmity or hatred… on grounds of religion”. Moreover, Section 153A of IPC talks of “promoting enmity between different groups on grounds of religion and doing acts prejudicial to maintenance of harmony”. In such cases, the offender can be punished up to three years of imprisonment or fine or both. Quite clearly Modi is acting prejudicial to maintenance of harmony and promoting feeling of enmity and hatred between different groups.
Yet the CEC has chosen not to agree to any of the above contention and deliberately chosen to “maintain eloquence of silence” by not explaining the reason for exonerating the PM. Ideally, the CEC website should put up the dissenting viewpoint as is done by the Supreme Court’s website, whenever a dissenting note is voiced.
Former CEC TS Krishnamurthy has observed that “whether a violation of code of conduct is found or not, the decision is to be conveyed to the complainant. The communication should be clear that the decision was taken unanimously or by a majority”. The Commission’s letter says that the Wardha speech has been considered in the light of MCC and RPA; but makes no mention of the IPC. The alleged breach of Section 153A of the IPC has been completely overlooked.
Lavasa has also given a dissenting view on poll body’s decision to give clean chit to Modi on his April 1 speech, where he has appealed to first time voters by invoking the Balakot air strike. The district electoral officer had reported the matter to the CEC. However, CEC did not agree with the district electoral officer’s contention, which was supported by Lavasa.
The trust deficit between the EC and the opposition parties has reached an all time low now. Article 329 of the Constitution has barred courts from interfering in electoral matters after the election process has been set in motion. The CJI pulled up the EC April 15 for not acting against speeches and statements on religious tine. The Supreme Court had observed in 1977 that “the CEC does not have to fold the hands and pray to God for divine inspiration to enable him to exercise his functions”. Quite clearly, the CEC does not wish to exercise its legitimate remit; possibly because it involves the PM.
The root of the problem, however, lies in the flawed system of appointment of Election Commissioners, who are appointed unilaterally by the government of the day. This has serious potential of politicising the appointment. In its 255th report, the Law Commission of India had recommended a collegium for appointing the Election Commissioner, in which the PM, CJI and Leader of Opposition will be members. This system has been functioning well for appointing CVC and CBI, who are important watchdogs of democracy. This will provide a broad based selection process and ‘check and balance,’ which is extremely vital for effective functionary of independent institutions. Fortunately, this matter will come up before a Constitution bench; thanks to a PIL in the matter.
In the rich history of India’s democracy, all institutions of the state have come under severe pressure at one point or the other. It started with the supersession of Supreme Court judges in 1973 and 1977. The Supreme Court bounced back with two seminal judgements; Kesavananda Bharati (1973), where it inked the basic structure doctrine, and Minerva Mills (1980), where it has held that Parliament cannot emasculate the Constitution. Most importantly, it has asserted the independence of the judiciary through its power of judicial review. It went a step further by striking down the appointment of PJ Thomas as CVC (2011), as the Collegium had not taken into account pending CBI cases against him. The moot point the court made was that the CVC was an “integrity institution”, which like Caser’s wife, should be above suspicion.
The same logic needs to be applied in the matter of appointment of important constitutional authorities like the CEC and the C&AG. The present arrangement has a high medium of partisanship to it, which must be avoided. In the words of Martin Luther King Jr. “our lives begin to end the day when we become silent about things that matter”. Plato said “I will put down your silence as consent”. By maintaining ‘eloquent silence’, the CEC is harming the dignity, credibility, transparency of the chief electoral body, which is the life breath for the formation of government in a fair manner. It is subjecting itself to a legitimate charge that like the CBI it has also become the ‘caged parrot’ of the party in power.