What Makes A ‘Free and Fair’ Election? Examining the Election Commission of India

The conduct of elections in India hinges upon the impartiality of the Election Commission of India (ECI) to ensure a level playing field to candidates. 

The run-up to the 2019 general elections has seen several dubious incidents that potentially violate the Model Code of Conduct (MCC): Narendra Modi publicly announced a mission by the Defence Research and Development Organisation (DRDO) to shoot down a defunct satellite, claiming that India was now a “superpower,” amid claims that he was taking credit away from India’s scientific community. Additionally, a biopic on Modi, PM Narendra Modi was slated for nationwide release on 11 April—the day polling begins; after much uncertainty, the Election Commission of India (ECI) intervened, stalling its release. Another web series, Modi: Journey of a Common Man is currently streaming online, and has been criticised for its hagiographical descriptions of the Prime Minister. Additionally, “NaMO TV,”—a television channel which broadcast speeches of Modi beyond the “election silence” deadline—had been approved by the Information and Broadcasting (I&B) Ministry under the caveat of a “platform service,” meaning that the channel does not require certification, and Direct–To–Home (DTH) subscribers have access without choosing to pay for it. While the ECI has called the channel “political publicity” and the BJP’s Information and Technology (IT) cell has also admitted to running the channel, the Commission has sought “pre–certification” of the channel, rather than considering it a violation of the MCC.

The ECI faces accusations of inadequate responses to MCC violations. Former bureaucrats have written to the President accusing the ECI of a “weak-kneed response,” the ECI asked Yogi Adiyanath to be “more careful” after he referred to the Indian army as “Modiji ki Sena,” and also found no violation of the MCC in Modi’s announcement of the DRDO mission under the criteria that the announcement was not made on a public broadcasting network. Modi’s recent appeal that young voters “dedicate” their votes to those who conducted the airstrikes in Balakot has only led the ECI to seek a report from poll officials.

What are the ECI’s functions as an election ombudsman? This reading list looks at the ECI,  its democratic expectations and the potential for necessary reform.

1) Does the Public Trust the ECI?
For democracy to grow robust, Manjari Katju writes that the institutional protection of democratic norms needs to assume utmost importance. Katju argues that people put their faith in constitutional institutions in which they do not exercise an electoral choice. People see the ECI’s work as necessary to ensuring the system functions—this is contrary to their views on elected representatives who neglect their responsibility to work for the people and refrain from fulfilling election promises.

The EC like the bureaucracy and the police comes into close contact with the people, but unlike the bureaucracy and the police (these two are the last on the poll’s list of levels of popular trust in institutions), has not been a harsh and bullying institution. Also, like the police, the bureaucracy and the elected governments, the EC has not come across as exercising arbitrary power. It is a constitutional institution which is rule-oriented and not one given to arbitrariness. Hence, people find it trustworthy and not loathsome as they find the others, especially the police and the bureaucracy.

However, Katju argues that while the ECI’s performance over the years has warranted faith in the polling process, the body needs to reconsider its manner of decision-making, which have been largely adhoc.

Though these decisions have been largely fair, this ad hoc manner of functioning can take the EC in the opposite direction of the surging democratic tide …  The EC has to ensure that politicisation happens, that it remains within the boundaries of democratic norms, and that these norms themselves do not rest unequally on the contesting sides and lead to depoliticisation of the weak. A long-term strategy or a conscious policy needs to be developed where the growth of democratic aspirations goes together with rule enforcement.

2) What Does Enforcing the Model Code of Conduct Entail?

Manjari Katju argues that the EC has regularly recognised code violations that range from public electoral promises during the MCC window to arresting politicians’ attempts to buy votes. Katju writes that the MCC was adopted by an all-party consensus to ensure the smooth functioning of elections, and the ECI is expected to use it to avoid electoral malpractice.

The EC has the power to suspend or withdraw recognition of a political party for its failure to abide by the model code of conduct or the directions of the EC. Though, violations occur at great regularity, the EC has rarely taken recourse to this power. It has issued warnings and reprimands and has stopped at that …  The EC’s own experience points out that in most cases, parties who have been found to be guilty of violating the model code of conduct have gone on the defensive when asked to explain their conduct. They have, though somewhat grudgingly, accepted the decisions of the EC. Rather than taking an offensive stance vis-a-vis the EC, they have tried to explain their actions and even rectify the problems. 

3) Can ‘Bias’ Be Expunged?

An Election Commissioner (ECR) can be removed by the President of India, who acts on the advice of the council of ministers. Sriram Panchu writes that the ECI and those who control the elections—the Chief Election Commissioner (CEC) and ECRs in particular—must be above suspicion. Further, Panchu argues that such an action must be taken free from political and legal wrangling.

The Supreme Court said that the CEC’s recommendation for removal must be based on intelligible and cogent considerations having relation to the effective functioning of the EC, and not on whim or caprice. It stands to reason that if it satisfies these criteria, it should be accepted and implemented.

In January 2009, the then CEC, N Gopalaswami, recommended to the Pesident that ECR Navin Chawla be removed from office. Panchu contends that Chawla’s ties with the Congress party were suspect and could explain instances of partisanship seen during Karnataka’s assembly elections.

Navin Chawla should never have been appointed as EC in the first place. He was secretary to Delhi’s Lt Governor during the Emergency (1975-77) and was charged with various misdeeds including illegal detention orders under the Maintenance of Internal Security Act (MISA) and treatment of detenus in jails …  The Commission of Inquiry consisting of J C Shah, former Chief Justice of India, upheld the charges against Chawla and concluded that he was “unfit to hold any public office which demands an attitude of fair play and consideration for others.” 

4) Is a Non-partisan ECI Possible?
Manjari Katju writes that the appointment of the CEC and other Election Commissioners (ECRs) are effectively political appointments of the government in power, carried out by the President. To ensure impartiality in the appointment procedure, Katju references a suggestion by former CEC B B Tandon, who argued in favour of a search committee which would include the Lok Sabha speaker, the leader of opposition in the Lok Sabha and the leader of opposition in the Rajya Sabha, the law minister, the deputy chairperson of the Rajya Sabha and a judge of the Supreme Court nominated by the chief justice of India.

 In fact, there seems to be an urgent need for reforms looking at the present context of a highly contested political domain. In this altered political scenario, it has to be ensured that all possibilities that might make the EC a contested institution are curbed. And as suggested earlier, by the Goswami Committee among others, the members of the EC should be barred from political and diplomatic appointments.   

Further, Katju asserts that the process of reform can be carried out without too much difficulty, largely due to the absence of political friction—reform should be a bipartisan approach as it does not seek to restructure the Indian political system or alter sociopolitical structures in the country. 

 The working of checks and balances ensures that if there is a possibility of the EC functionaries to lean towards one political party, the other political parties can check the deviance by bringing it to the notice of the concerned authorities …  the reform in the appointment of the Election Commission is not something that challenges the foundations of our political system. If taken up seriously it should smoothly pass through. Moreover, it is a reform that would benefit all political parties especially when they are in opposition. 

Read More:
The Election Commission and the Judgement | Ramaswamy R Iyer, 1996
Holding the Election Commission Accountable | Alok Prasanna Kumar, 2018
The Evolution of the Election Commission of India | Rashmi Sharma, 2018
A Vulnerable Election Commission | Editorial, 2019

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