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Election Commission and Changing Contours of Politics

Looking at the past of the Election Commission, one finds that the relative calm in which it functioned earlier was the era of the one-party dominant system. With the coming of a true multiparty system, the scene has changed. Apart from the increased load of electoral work, the EC also has to deal with the changed nature of politics. Aspirations by multiple parties to attain or hold on to power have hugely increased rule-bending, rule-flouting and aggressiveness. These transformations in politics demand not only an altered approach to electoral work, but perhaps a reform in the setting up of the EC itself.

COMMENTARY

Election Commission and Changing Contours of Politics

Manjari Katju

e xpand its spread much beyond its conventional role. It has had to perform the twin tasks of (i) conducting elections, and

(ii) ensuring unhindered participation in the elections. The EC has to manage electoral competition, something which it has been doing since its inception. However,

Looking at the past of the Election Commission, one finds that the relative calm in which it functioned earlier was the era of the one-party dominant system. With the coming of a true multiparty system, the scene has changed. Apart from the increased load of electoral work, the EC also has to deal with the changed nature of politics. Aspirations by multiple parties to attain or hold on to power have hugely increased rule-bending, rule-flouting and aggressiveness. These transformations in politics demand not only an altered approach to electoral work, but perhaps a reform in the setting up of the EC itself.

Manjari Katju (mkatju@gmail.com) is with the Department of Political Science, Hyderabad Central University.

T
he Election Commission (EC), an institution whose responsibility it is to sort out political competition, has itself become a site of political contestation. The two recent incidents involving the EC have shown once again that it has become subject to allegations and counterallegations of partisanship. The Chief Election Commissioner (CEC) N Gopalaswami’s letter to the president recommending the removal of Election Commissioner (ECR) Navin Chawla on the grounds of partisanship made front page news in January-February 2009. This internal friction became a public spectacle. Closely following this episode we had the EC’s response to the communally charged malicious speech by Varun Gandhi in March. The EC felt that his speech was a grave violation of the model code of conduct. The result was another round of allegations, this time from external sources and against the entire Commission, accusing it of f avouring the rival party. Both these incidents have shown that the EC is increasingly becoming a domain of political a ntagonism. As it happens, this constitutional body is perceived as either favouring this or that party.

The legality of the matters involving the EC – whether the CEC’s moves are constitutional or otherwise, what is the president supposed to do if the CEC makes a suo motu recommendation for the removal of an ECR, whether the commissioner whose removal has been recommended can continue in office or can be elevated to the post of the head of the Commision, what sort of an advisory role does the EC have, etc – are not my concern in writing this note. This has been widely debated by constitutional and legal experts.1 My concern here is to look at the politics which these episodes are a manifestation of.

Dual Role of the EC

In recent years, especially since the onset of the coalition era, the EC has had to

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the responsibility has increased enormously with growing political consciousness. The size of the electorate, the number of political parties and the number of candidates contesting elections have gone up manifold from the time of the first elections. The size of the electorate which was

17.32 crore in 1951 went up to nearly 62 crore in 1999 and 67.15 crore in 2004. The voting percentage which was 44.87 during the first general elections went up to 63.56 in the eighth general elections (1984) and was 58.07 during the 14th general elections (2004).

The number of political parties contesting elections has gone up four times from the first general elections. Also, the number of those who feel that their vote has an effect on the political state of affairs of the country has gone up to 58.6% in 1996 from 48.5% in 1971 (Mitra and Singh 1999: 140-41). It is interesting that in India, 70% prefer democracy, only 9% feel that dictatorship is better and 21% feel that it does not matter to them (State of Democracy in South Asia: A Report 2008: 11). The indications are that there is an overwhelming support for a democratic form of government and it is preferred over authoritarian rule. Thus, the smooth functioning of democracy in such a situation necessitates a steady and efficient working of the electoral machinery. The EC has to make sure that the electoral laws are duly followed by all political parties and there is no rule breaking.

What the above indicators also show is that along the way of conducting elections, the participatory aspect has assumed significance. To take a detour one must mention that the participatory concerns have become important not only for India, but for some other democratic countries also. Falling voter turnouts have compelled some western liberal democracies to look at the issue of electoral participation and ways to shore it up. For instance, the

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E lectoral Commissions of New Zealand took up the case of increasing participation among the Maoris. Similarly, the Electoral Commission of the United Kingdom took steps to bring awareness about voting and democracy among black and minority ethnic communities. In Canada, efforts have been made to raise electoral activeness among the aboriginals, ethnocultural communities and students among others. Though the efforts that are being made in these and some other countries to raise levels of participation are attributable to the falling levels of voter turnouts in elections, the point remains that participation has become a central issue for institutions that handle elections in these countries.

Democratic politics has brought into its ambit larger and larger numbers of people. In a limited way, elections symbolise the working of participatory politics. This is a mode of mass participation in policymaking at the higher levels in representative democracies. Here, elections imply full and equal participation something which might not be experienced at other levels of political activity. Voting is a small political activity, but its collective power is something which can bring about political transformations of an unprecedented n ature. Electoral authorities the world over, including our EC, have to ensure a free and fearless expression of the popular will. Participation, however, is one a spect of democratic functioning. The other equally important aspect is competition. Democracy is as much about p olitical involvement as about political contestation. Growing politicisation also means growing competition for positions and patronage.

In India, these struggles, it goes without saying, are about struggles for more dignity and equality. It is through increased power and political presence that the c itizen feels she is in a position to achieve these goals. One of the ways in which this competition is played out is by entering the existing political or state institutions. There are growing demands for increased presence in all public institutions. If it is not entry which is sought, there is at least an aspiration that public institutions should be favourably disposed towards one or one’s community. What I am pointing at is

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that democracy has brought us to a threshold of increasing demands and competition for power and resources. Public institutions, whether statutory or constitutional, whether elected or non-electoral, c annot escape this contestation. Similar is the case with the EC. As politics in India becomes more competitive and contested, the state institutions would all be open to internal cleavages and tensions. The EC, as an institution which has to do with handling of one of the most crucial process of a democracy, namely, the elections, cannot escape this conflict. It would be naïve to expect it to remain above conflict. However, in all this, the thumb-rule should be to ensure that state institutions do not b ecome beholden to the political executive and function fairly and impartially. How should the independence of the EC be strengthened? Is there a need for reform of the EC? Before turning to these questions let us look at the changed circumstances in which the EC functions.

Growing Political Competition

Looking at the past of the Election Commission of India, one finds that the relative quietitude in which it functioned earlier was the time of the one-party dominant system. This was a time when its task was literally to conduct elections smoothly and fairly. This function could be and was carried out by controlling the ruling party excesses. The EC had to oversee that the one ruling party did not cross the legitimate limits of political behaviour and f ollowed rules. The rest took care of itself. With the replacement of the one-party dominant system with a multiparty s ystem, the scene has altered. In sheer magnitude the electoral process has grown tremendously. But it is not merely the increased load of work. It is also the changed nature of politics. The growing number of political parties contesting both the central and state elections has meant increased competition for power that has made the political arena a highly contested domain. Aspirations to attain power or hold on to power have added to rule-bending, rule-flouting, increased a ggressiveness, and what we call muscle and money power. It has also brought forth the sectarian deployments of socioreligious identities to garner votes. These

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transformations in politics demand not only an altered approach to electoral work, but perhaps a reform in the setting up of the EC itself.

What needs to be emphasised, as I a rgued a few years ago (Katju 2006), is that the EC in this altered situation has to supervise not merely the poll process but also has to manage a number of other tasks which if ignored would harm the democratic functioning of the parliamentary system in India. As discussed in the first section, the EC, besides playing the role of a facilitator of electoral competition, has to take on the roles of a mediator in political disputes and a defender of the rights of the weak. The EC has to ensure that the electoral rules are adhered to so that all players get a fair chance to present themselves in the electoral arena.

The changed political context of multiple parties and coalitions presents a situation where the EC has to check the abuse of power not by one, but by several parties who are part of ruling coalitions at the centre and states. The parties in power through their control over governmental machinery and personnel have many a time easily succumbed to the temptations of using their governmental power for electoral victories. Instances of excesses and self-aggrandisement of the ruling parties abound before and during elections. These activities have to be curbed. In turn, the executive has to be persuaded to maintain or improve law and order in the r egions going to polls to enable weaker parties to participate equally.

Political and ethnic minorities, oppositional groups and ordinary people have to be provided with safeguards to participate in elections freely and without fear. Mediation needs to be facilitated between the central and state governments as also b etween political parties on matters that have implications for elections. Stronger parties have to be restrained so that the weaker parties are enabled to enter the electoral arena with confidence. This also means that malpractices and criminalisation during the polls have to be p revented so that the weaker social groups do not get disenfranchised. Loss of life and damage to property in group clashes need to be prevented. It also has to be ensured that the other provisions of

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the model code of conduct and the Representation of the People Acts are adhered to by all the political parties. This surely is a lengthy and growing list of responsibilities. The EC has to shoulder them and facilitate the functioning of the d emocratic process.

EC and Its Reform

The appointment of the CEC and the other ECRS is done by the president. However, it is well known that these are political a ppointments in the sense that the president appoints them on the advice of the government in power. The CEC cannot be removed from office except in like manner and on the like grounds as a judge of the Supreme Court, and his conditions of service cannot be altered to his disadvantage after he takes over as CEC. This provision was made to enable the EC to work in a reasonably autonomous manner and prevent undue interference of the executive in its working. The removal of the other members of the EC was made subject to the recommendation of the CEC (and it is as regards this provision that problems have come up).

A need was felt to further fortify the independence of the EC and to remove any kind of influence over it and the consequent partisanship which might occur. Suggestions have come that the choice of the CEC and the other ECRS should be more broad-based so that the question of bias in appointments is eliminated and that the EC is viewed as an impartial body by all. The Tarkunde Committee (1975) and the Goswami Committee (1990) made their recommendations in this regard.2 In fact, during the Constituent Assembly Debates (CAD) a suggestion was made by one of the members that the appointment of the CEC should be subject to confirmation by a two-thirds majority in a joint session of both Houses of Parliament (CAD 15 June 1949). Finally, it was left to Parliament to make appropriate laws on the matter. In 2006, a suggestion was made by the f ormer CEC, B B Tandon to the former President A P J Abdul Kalam (when both were in office) that a seven-member committee headed by the prime minister should choose the CEC and the other ECRS. This committee should include the Lok Sabha speaker, the leader of opposition in the Lok Sabha, 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.3 The CPI(M) had also made a strong case for r eform in the EC in 2006.4

One also needs to mention here that the EC under the former CEC, T S Kris hnamurthy proposed some reform measures just after the 2004 general elections. This list among other items included a proposal that the provision for the removal of the other ECrs should be made the same as that of the CEC. To quote from the 2004 document of the EC,

In order to ensure the independence of the Election Commission and to keep it insulated from external pulls and pressures, Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election Com missioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court. However, that Clause (5) of Article 324 does not provide similar protection to the E lection Commissioners and it merely says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The provision, in the opinion of the Election Commission, is inadequate and requires an amendment to provide the very same protection and s afeguard in the matter of r emovability of Election Commissioners from office as is available to the Chief Election Commissioner (p 14).

The provision for the removal of the ECRS is something that needs to be seriously looked into. The Chawla episode brought this forth clearly. The question is: can the ECrs always perform their tasks e ffectively when there is a possibility that they can be removed from office on the recommendations of the CEC if any action of theirs displeases him/her? Conversely, if there is a serious instance of dereliction of duty on the part of an ECR, should not the CEC ask for his removal suo motu?5 The S upreme Court judgment in the T N Seshan vs the Union of India case (1995) can provide some guidance here, but is not conclusive on the question of removal of ECRS. The Supreme Court in this case ruled that the CEC is first among equals and does not have superior authority over the other ECRS. It said that decisions of the EC have to be arrived at by consensus and in its a bsence by majority.

The suggestions discussed above make a persuasive case for reforms of the EC. 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

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curbed. And as suggested earlier, by the Goswami Committee among others, the members of the EC should be barred from political and diplomatic appointments. Besides this, they should also be barred from contesting elections. The EC apart from being an impartial body also has to be perceived as such.

Non-Congress Parties and Reform

The calls for electoral reforms, including reform in the selection of the ECRS, have come from non-Congress parties. It was to break the Congress monopoly over power that the parties leading mass movements brought in the reform effort. The Tarkunde Committee and the Dinesh Goswami Committee were appointed by non-Congress parties which had led strong mass movements against the Congress. However, it is interesting that none of the non-Congress movements when in power acted upon the EC reform issue. Whether it was the Janata Party of 1977 or Janata Dal of 1989 or the National Democratic Alliance (NDA) of 1999, none of them did anything regarding the appointment and functioning of the EC despite being vocal on the issue while in opposition. It is interesting that the Bharatiya Janata Party (BJP), when it lead the NDA government during 19992004 did not take up the issue at all d espite having a clear stand on it and having outlined it in its electoral manifesto of 1998.6 The BJP as the lead partner during the NDA regime made appointments to the EC7 as before, but did not raise the issue of appointments to the EC through a panel. This raises an important question: is there something inherent in the nature of the EC that it is perceived by the ruling parties as a defender of the status quo and thus, changes in the process and method of a ppointment of the ECRS and CEC are put on the back-burner as soon as the parties come to power?

To take the discussion further it should be mentioned here that though proposals for change in the EC have come from non-Congress parties, it was during the Congress regimes that the changes actually were given effect. Both the occasions when the EC was expanded were during Congress rule. The first time this occurred was during Rajiv Gandhi’s prime ministership and the second under P V Narasimha Rao.

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There was a growing perception within these governments that the EC was actually being partaken by the one person who was its sole member and chair, and things were becoming uncomfortable for them (the ruling Congress Party). There was a need felt to detach the EC as an institution from its only member and make it more broad-based to reduce the pressure felt by the ruling Congress. The result was the expansion of the EC from a single-member to a three-member body. Though this was a consequence of the differences of these governments with the then CECs8 and e fforts to neutralise the CEC, the point remains that these changes were brought about by the Congress governments. It helps the regime to make its own appointments to the EC to neutralise the opposition to it which might be present. In fact, Navin Chawla’s appointment despite strictures against him by the Shah Commission is a case in point. As for the legality of this expansion, the Constitution clearly spells out that the president has the power to appoint the CEC and ECRS (the number of the latter can be altered) and their appointment is subject to the laws made by Parliament in the matter. It was this constitutional provision which provided the grounds for the expansion of the EC though for completely partisan reasons.

There is also the established fact that if there is an intense demand for change in the electoral provisions, Parliament has taken upon itself to add to the constitutional and parliamentary provisions. This is clear if one looks at the amendments to the Representation of the People Acts from time to time.

When it comes to the implementation of the model code of conduct, as revealed in the Varun Gandhi episode, the emphasis of the political parties should be to make sure that it is enforced. Since the code was formulated through an all-party consensus, lapses in its enforcement should be a much more serious concern for the political parties (as it is for the EC) rather than its implementation. If the EC on the basis of complaints acts on the breach of the code, it is in keeping with the role which was elaborated for it. However, one sees more instances of the wrath of political parties over the actions of the EC to put the code into effect. This is bound to

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h appen, and increasingly so, if EC is looked upon as a partisan institution.

Checks and Balances

As far as growing politicisation in the country is concerned, it works both ways. While it makes the public institutions grounds of contestation, it also builds pressure on the institutional personnel to act fairly. The just and fair working of public institutions can come about only by way of popular pressures on them. The fight for equality and justice not only democratises the political processes but institutional functioning also. The working of the EC at the local levels has revealed that greater politicisation of voters creates pressures and counter-pressures on the EC officials not to act partially. There is an informal system of checks and balances which comes into operation during the polls with the local political party functionaries maintaining a vigil on their counterparts in rival parties and also on the officials of the EC. What this implies is that greater the political assertiveness at the ground level, the greater would be the deterrent pressures on the electoral functionaries not to conduct themselves in a partisan manner. The working of checks and balances ensures that if there is a possibility of the EC functionaries to lean t owards one political party, the other political parties can check the deviance by bringing it to the notice of the concerned authorities. If the violations of impartiality are grave, and they are established, then nothing stops Parliament from enacting a law to remedy the institutional lapse through its reform.

The process of reform of the EC to further raise its trust levels is something which should be carried out. And, it can be easily carried out, or to state it in a different way – it does not seem to be a complicated process. The possibility of any major political friction over this reform looks very slim. This is so because it (this reform) will not radically shake up the I ndian political set-up. It is not a change that will create a political churning and rattle the socio-political structures the way the issues of Other Backward Classes reservations or women’s reservations have done in recent times. The uproar over both these issues rocked the political

COMMENTARY

environment of the country and sharpened opinions on both sides of the divide. In fact, the latter is still struggling as a highly contested bill since the time it was introduced in Parliament in September 1996, demonstrating once again how power sharing is severely resisted. Compared to these among some other issues, 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.

Notes

Though there was no unanimity of opinion among the constitutional experts, the overarching opinion among them was that CEC Gopalaswami’s actions in the Chawla case were unjustified. While some like Ashok H Desai, K K Venugopal, Fali Nariman and S Mohan (retd judge of the Supreme Court) have felt that the CEC is not constitutionally empowered to make a suo motu recommendation of removal, others like Rajiv Dhawan feel that he is fully empowered as the CEC to recommend the removal of an ECR if he feels that the latter is partisan (for details see http://www.zeenews.com/nation/2009-0131/503435news.html and http://www.hindu. com/2009/02/12/stories/2009021254531100. htm). These sites were accessed in March 2008. See also Sriram Panchu (2009).

2

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aprakash Narayan recommended that the members of the EC should be appointed by the president on the advice of a committee, consisting of the prime minister, the leader of the opposition (or a member of Parliament selected by the

opposition) in the Lok Sabha, and the chief justice

of India. The Dinesh Goswami Committee on electoral reforms was set up by Prime Minister V P Singh in 1990. It recommended that the CEC should be appointed by the president in consultation with the chief justice of India and the leader of the opposition and that the other two ECRs should be appointed in consultation with the chief justice of India, leader of the opposition and the CEC. It also said that this consultation process should have statutory backing. Further it recommended that the CEC and ECRs should be made ineligible not only for any appointment under the government but also to any office including the post of governor, the appointment to which is made by the president.

3 For details see “BJP Supports Collegium for Appointment of EC Members”, The Financial Express, 13 May 2006.

4 For details see “Election Commission Needs Reforms”, The Hindu, 31 August 2006.

5 See Sriram Panchu (2009) for the constitutional and legal implications of the Chawla episode.

6 For details on the issue see Era Sezhiyan (2001). Era Sezhiyan, founder member of the Janata Party, post-Emergency, is a former member of the Lok Sabha as also the Rajya Sabha and has been an ardent advocate of electoral reforms.

7 The former CECs T S Krishna Murthy and B B Tandon were appointed during the NDA regime (1999-2004).

8 First with R V S Peri Sastri and then with T N Seshan.

References

Election Commission of India (2004): Proposed Electoral Reforms.

Katju, Manjari (2006): “Election Commission and Functioning of Democracy in India”, Economic & Political Weekly, 29 April.

Mitra, Subrata K and V B Singh (1999): Democracy and Social Change in India: A Cross-Sectional Analysis of the National Electorate (New Delhi: Sage Publications).

Panchu, Sriram (2009): “Free and Fair Election Commissioners?”, Economic & Political Weekly, 28 February.

State of Democracy in South Asia: A Report 2008 (New Delhi: Oxford University Press).

Sezhiyan, Era (2001) “Appointment of Election Commissioners”, The Hindu, 21 May 2001 (http:// www.hinduonnet.com/2001/05/21/stories/ 05211349.htm) – site accessed on 15 March 2008.

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