People's Democracy(Weekly Organ of the Communist Party of India (Marxist)
September 03, 2006
CP(M) For A National Debate On Reforming EC
THE Communist Party of India (Marxist) has called for a national debate on the imperative of reforms in the Election Commission, particularly in light of its functioning in the conduct of various state assembly elections in the recent past. It has appealed to all political parties, concerned citizens, other organisations to seriously deliberate on this issue and join the debate in order to strengthen democracy.
CPI(M) general secretary Prakash Karat released a 23-page booklet titled ‘Election Commission – A Case for Reform’ at a press conference held at A K Gopalan Bhavan on August 30, 2006. CPI(M) secretariat member Nilotpal Basu was also present on the occasion. The document apart from listing out the main problems, aberrations and unhealthy features experienced during the course of the recent Bengal assembly elections, raises many important questions regarding the functioning of the only Constitutional body entrusted with the conduct of elections in the country.
Prakash Karat said the purpose of bringing out this document was to initiate the debate on the need for reforms in Election Commission. He said that within the CPI(M) he had been dealing with the Election Commission related matters for the last 20 years but never had he come across such serious problems with the EC as happened with the present EC. He underlined that the CPI(M) is interested in the strengthening of the institution of election Commission and this exercise is oriented for that purpose. He informed the media that copies of the document have been sent to all registered political parties of the country requesting them to consider the CPI(M) views on this issue while formulating their stance.
Karat said during the Bengal elections, lakhs of voters were disenfranchised by the Election Commission despite their possessing valid documents. As feared the EC washed its hands off when approached for correcting this injustice by citing “lack of machinery”. On the election observers, Karat raised many questions: What is their role? Do they have executive powers? Can they order arrest of people? Etc and said there have been no answers to these questions. He charged the EC observers openly acting at the behest of Trinamool Congress in many instances. The height of their high-handedness was the issuing of notices to two sitting MPs of CPI(M) and one former MP of the Party saying they were Bangladeshi citizens!
Citing the unprecedented use of powers by the EC in Bengal, he aksed: “Can virtual president’s rule be imposed in the name of superintendence of elections? Is it the aim of the EC to have president rule in states going to polls? Different standards are being applied to different states. All political parties must come to terms with this”. Given the experience of the EC functioning in Bihar, Bengal, Kerala etc Karat said there is a need for having accountability in Election Commission in terms of appointment, functioning, expenditure etc and necessary changes in law must be made to ensure this. He also raised the issue of stopping of all development works in the entire districts from the time of announcement of polls, particularly in light of five-phase polling taking place.
The following is an extract from the document released at the press conference, which covers the four main areas where reform is largely felt according to the CPI(M).
THE REFORM OF THE ELECTION COMMISSION
Summing up all these experiences, a case for the reform of the institution of EC comes out very strongly. The need for reform is felt largely in four areas to ensure that the constitutional objective of holding elections to strengthen democracy in a manner where the widest possible informed choice of the voters can be ensured.
These are important issues not only from the standpoint of holding free and fair elections, but also considering India’s diversity and federal structure. Given this context, we suggest the following:
I. The composition and the modality for appointment and removal of members of the EC, including the CEC: Initially, the EC was a one-member body. Subsequently, the size of the EC was expanded to three with special provisions for the removal of the CEC. In so far as the appointment procedure is concerned, the members may be appointed by the President on the advise of a committee consisting of the Prime Minister, the leader of the Opposition and Chief Justice of Supreme Court or anyone of his brother judges from the apex court. However, the ECs must be legally debarred from enjoying any office after their retirement either under the government or as a Governor or as Members of Parliament to eliminate any possible conflict of interest. There should be a constitutional mechanism to monitor and check if Election Commission acts with political bias, usurps the powers of governments or does anything with malafide intention. Article 325 is not sufficient. The Election Commission should be made accountable for its commissions and omissions.
II. Jurisdiction of the EC: This question has emerged as a major issue. Certain orders of the EC during the elections on the ground that these are necessary for holding free and fair polls are being openly questioned as they implicitly encroach into constitutional powers of the executive and the legislature. The EC’s decision to.15 discipline officials under the central and the state governments even before the actual notification of the dates for election, the wholesale exclusion of the employees of a state entirely from crucial polling duties are fraught with upsetting federal sensitivities. The EC’s decision to question the legislative initiative of the executive subsequent to legislative decisions taken prior to the enforcement of the code of conduct implies encroachment in legislative autonomy and is prone to subjective interpretation. The EC’s method of budgeting and actually incurring expenditure stands in sharp contrast to the budgetary process otherwise followed. Since ultimately the expenditure comes from the public exchequer, unless transparent, verifiable and justifiable procedure is ensured, this may actually lead to wasteful expenditure without any element of accountability. The recent decision of the EC to disenfranchise people even though their name existed in the electoral roll for not having the photo identity card is a complete reversal of the legal position. Therefore, it is in these areas of EC’s jurisdiction that clarity and amplification is needed through legislative action.
III. The definition and the role of election observers: In spite of a number of queries, the EC has not been able to clarify whether the observers are vested with executive powers or not. Though the EC documents suggest that observers’ powers are essentially recommendatory in nature and persuasive in practice through the regular Election Commission hierarchy, the observers were actually found to be exercising executive power, mostly through oral instructions. Some actions of some of the observers were so blatantly high-handed and partisan that even the EC had to remove them (see Annexure 4 on complaints on observers). The method of appointment of observers is also flawed and does not have the requisite level of transparency commensurate with the recently enacted Right to Information Act. In some blatant instances, the EC has appointed observers against whom there are pending CBI proceedings. Therefore, on this question as well, the RPA must be very specific and the EC’s functioning has to be regulated by the legal provision.
IV. The law and order question and the deployment of central forces: Law and order is the exclusive prerogative of the state government as per the provision of the Constitution. The Constitution does not have any saving clause which can override this power even during the election. In the past, these issues had been amicably settled. But, currently, a unilateral approach is being pursued by the EC which underlines a contempt and mistrust towards elected state governments questioning their commitment in defending the Constitution. The friction between the EC and an elected state government — both constitutional bodies — is not only undesirable but in a federal situation potentially dangerous. Therefore, this issue also has to be resolved through appropriate legislation by the Parliament. An amendment to Article 324 can bring about some mechanism for amicable resolution of such frictions.