By Sanjay Raman Sinha
In a strong move, the Election Commission (EC) has stymied the plan of the government to initiate a Viksit Bharat Sankalp Yatra across the country from November 15. The Yatra was supposed to have bureaucrats as “Rath Prabharis” to spread news about the government’s developmental work.
However, following a complaint from the Congress, the EC struck down the move. In a letter to Cabinet Secretary Rajiv Gauba, the EC said the Yatra cannot take place in the five poll-bound states where the Model Code of Conduct (MCC) is already in place.
The EC said that election schedules had already been announced in five states—Madhya Pradesh, Rajasthan, Chhattisgarh, Mizoram and Telangana—and in Nagaland where a by-election in Tapi is due. In view of this, the Yatra shouldn’t happen in these states, it said. Furthermore, the EC said that it had been brought to its notice that a letter was circulating in ministries for nomination of senior officers as “District Rath Prabharis”, special officers for the Yatra. The EC instructed: “In view of the foregoing, the Commission has directed that the aforesaid activities should not take place in constituencies where MCC is in place till December 5.”
The Viksit Bharat Sankalp Yatra is an ingenious brainchild of the ruling party wherein it plans not only to highlight its pro-people development work, but also India’s achievements like the Chandrayaan landing on the Moon, the G20 Summit and hosting of the Asian Games. All this during an election period.
The Opposition has been up in arms against the government’s plan of drafting central government officers as “Rath Prabharis”. The EC’s action came a day after the Congress lodged a complaint with the chief election commissioner (CEC) against the centre’s orders. The Congress held that the orders “directing Civil Servants and Indian Army soldiers to promote achievements of BJP-led Union Government” are a violation of the MCC and the Central Civil Services (Conduct) Rules, 1964.
Following the uproar, the government has now replaced “Rath Prabharis” with “nodal officers”. These officers will be in charge of information, education and communication of the raths or communication vans.
The stern action of the EC harks back to the days when it was a feared institution and would take the government of the day by the horns. Whether it was the headstrong TN Seshan or the unrelenting Ashok Lavasa, CECs were made of sturdy mettle. Lavasa and his family had to brave alleged retaliation by the government when during the Lok Sabha polls, he opposed the EC’s decision to give clean chits to Prime Minster Narendra Modi and Home Minister Amit Shah for alleged poll code violations. Following his dissent, a flurry of income tax notices were slapped against his wife Novel and son Abir.
TN Seshan is an altogether different story. He single-handedly tried to cleanse and streamline the electoral system, and in the process, took on the might of the government of the day. It was Seshan who began issuing identity cards to voters. The political rulers protested citing costs. Seshan didn’t budge and stopped the elections. The deadlock continued for 18 long months. As the government didn’t relent, Seshan ordered that no elections would be held after January 1, 1995. However, the Supreme Court intervened and ruled that voting was an inherent right of citizens and could not be postponed indefinitely because voters lacked identity cards. Later on, the government issued identity cards.
Flashes of strength by the EC in critical times are exactly what the Constitution framers expected from it. However, they had, in the same breath underlined the need for insulating it from political pressures and maintaining high standards of personal integrity, probity and strength of character of its members.
Pandit Hirday Nath Kunzru, a member of the Constituent Assembly, while deliberating on the role of the EC, had stated: “It is necessary therefore that every possible step should be taken to ensure the fair working of the electoral machinery. If the electoral machinery is defective or is worked by people whose integrity cannot be depended upon, democracy will be poisoned at the source.’’
The debate came full circle when the matter of appointment of election commissioners came up in November 2022 during Anoop Baranwal vs Union of India. A five-judge Constitution bench was hearing a case relating to reforms in petitions seeking reforms in the system of appointing election commissioners. The Court lamented that the EC has become a handmaiden of the political masters and that no CEC had been allowed to work the full term of six years since 1996.
The bench led by Justice KM Joseph had strongly remarked: “It’s a very, very disturbing trend. After TN Seshan (who was CEC for six years between 1990 and 1996), the slide began when no person has been given a full term. What the government has been doing is that because it knows the date of birth, it ensures that anyone who is appointed as the CEC does not get his full six years… Be it the UPA (Congress-led United Progressive Alliance) government or this government, this has been a trend.’’
The manner of appointment of the CEC by the government also came up during the hearing when the bench remarked to the government: “Do you think the Election Commissioner… if he’s asked to take on none less than the Prime Minister—it’s just an example—and he doesn’t come around to doing it: Will it not be a case of complete breakdown of the system?”
The point in question was the manner in which the CEC is appointed. Article 324 of the Constitution talks about appointment of election commissioners, but does not give the procedure for appointment. The bench said: “In this way, the so-called independence, which is just lip-service, is completely destroyed… Particularly in view of the disturbing trend we have found… nobody can question them since there is no check. This is how the silences of the Constitution can be exploited. There is no law, no check. Everyone has used it to their interest… Pick up someone and give him a highly truncated tenure. He is obligated; does your bidding… we are not saying so but it looks like that.”
The hearing came to a conclusion in March 2023 when the Supreme Court ruled that a three-member committee should select the CEC and election commissioners. It was a historic verdict. The committee was to consist of the prime minister, the Leader of the Opposition in the Lok Sabha or the leader of the single largest party in the Lok Sabha, and the chief justice of India. This new system would have to be in force until Parliament enacts a law for selection of election commissioners. The aim of the verdict was to make the EC independent and immune to government influence. In the verdict, Justice Joseph noted: “An Election Commission which does not ensure free and fair polls as per the rules of the game, guarantees the breakdown of the foundation of the rule of law.”
The EC possesses wide powers and if it exercises it unfairly by ignoring breaches in the MCC, it “unquestionably breaches the mandate of Article 14 of the Constitution”. Article 324 gives the EC wide powers for “superintendence, direction and control” of the conduct of elections to the Parliament and the legislature of every state, and of elections to the offices of president and vice-president. The verdict maintained: “Any potential direction to include any non-Executive, would involve a violation of the Doctrine of Separation of Powers.”
The verdict excerpts a passage from the book, Framing of India’s Constitution, by B Shivarao. It reads: “The theory of separation of powers in an ultimate analysis is meant to prevent tyranny of power flowing from the assumption of excess power in one source. Its value lies in a delicate but skilful and at the same time legitimate balance being struck by the organs of the State in the exercise of their respective powers. This means that the essential powers which are well understood in law cannot be deliberately encroached upon by any organ of the State.’’
So, it is obvious that the Court has provided a shield for the Election Commissioner or Regional Commissioner. They can be removed only in the same manner and grounds as a judge of the Supreme Court.
Numerous verdicts have asserted the inherent independence of the EC. However, the sanctity and vitality of any institution is dependent on not only statutory edicts, but on the strength of character of the individuals manning the posts. The crisis of an institution is equally a crisis of character.