The Election Commission under TN Seshan, described as a maverick by some but by some others as the most conscientious and independent poll official the country has ever seen, was expanded to include more members to restrain the Chief Election Commissioner from overreaching.
But with the incumbent Election Commission, inaction has become its trademark and it is the height of irony that the presence of more members is bringing at least a semblance of activity within Nirvachan Sadan, though it has not made any difference on the ground.
The situation has come to such a pass that every action, which actually amounts to inaction, is being taken to the Supreme Court by the so-called victims. In many cases, the commission acts only when instructed to do so by the court.
At other times, the court also gives up, insisting that it is for the commission to decide. There have also been instances when the court asked the aggrieved parties to go back to the commission for reconsideration of its stand, but that rarely happens.
One cannot help notice a tendency to pass the buck on the part of both the court and the commission in sensitive issues. It has been patently applying the rules on a selective basis, enforcing them strictly when it came to opposition parties and acting blatantly in favour of the ruling party.
For instance, when Congress MP Sushmita Dev moved the court against the commission’s inaction in dealing with alleged violation of the model code of conduct by Prime Minister Narendra Modi and party chief Amit Shah, the court set a deadline of May 6 to take a decision on all pending cases, which meant that the court did not want to express its mind over the issue.
And when the complainant went back to the court, alleging that the commission had not applied it mind properly while deciding on the complaints, and that the orders were passed belatedly in order to give undue edge to the ruling party, the court expressed its inability to interfere. The court said it cannot examine the merits of the orders passed by the Election Commission.
Eleven representations had been made to the commission against Modi and Amit Shah, but it gave a clean chit to both in all, prompting the Congress party to complain that the commission was adopting double standards.
Election Commissioner Ashok Lavasa has even dissented with his colleagues in five different complaints of alleged violations of the model code, four of them pertaining to Prime Minister Modi, but that was of no avail as according to the norms the majority view will prevail. The commission comprises CEC Sunil Arora and commissioners Ashok Lavasa and Sushil Chandra. All three have equal say in decision making.
But unfortunately, the dissenting note will only remain in the files of the poll body and it is not uploaded on the poll panel’s website, unlike in the case of the Supreme Court where the dissenting note becomes part of the judgment. So in the present case, the complainants cannot even get an official record of why those petitions had been decided whichever way.
Over time, a certain clear pattern has emerged over the decisions by the Election Commission, which points to decisions being taken in favour of the ruling party and against the opposition parties.
One does not expect anything more when the Chief Election Commissioner and the Election Commissioners are appointed by the President on the advice of Prime Minister.
There have been calls for a thorough reconsideration of the role and independence of the Election Commission in the interest of safeguarding democracy and free and fair elections. There have also been suggestions that EC and members of the poll panel be appointed by a collegium, as is the practice in the appointment of Supreme Court judges.
The Administrative Reforms Committee and the Law Commission have recommended the institution of a collegium comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India, but the governments of the day have refused to act, obviously as the existing arrangement serves the purpose of the ruling establishment.
The biggest pitfall of the current system is that the government can control a defiant CEC, which was the real intention when the commission’s size was expanded during T N Seshan’s time, using the majority voting power of the two commissioners, whose tenure is not protected, unlike the CEC, who can be removed only through an impeachment.
There is no doubt that the prevailing situation poses a serious challenge to our democracy. The credibility of popular mandate through electoral verdict itself will be under a cloud if people lose faith in the institutions of democracy, of which the Election Commission is the kingpin.