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Mainstream, VOL LIV No 29 New Delhi July 9, 2016

Time to Codify Election Commission’s Powers

Saturday 9 July 2016, by Barun Das Gupta


The West Bengal Assembly elections, held in six phases over seven days from April to May, saw some unprecedented steps being taken by the Election Commission, ostensibly to make the polls ‘free and fair’. For the first time the strength of the Central paramilitary force was raised from 40 companies to 700 companies or seventy thousand personnel. Some commen-tators said this was ‘militarisation’ of the elections. The way the polls were conducted, many would agree to this description. Besides the CRPF, there was a huge army of ‘observers’, ‘assistant observers’, ‘micro-observers’, etc. Each polling booth had a battery of CCTV cameras. The booths were made out of bounds for the State Police. They were debarred from entering the booths but posted outside.

Then there were wholesale transfer of police officials. Any police officer, starting from the Commissioner of Police, Kolkata, to those down below in the hierarchy, was peremptorily removed by the EC as soon as any complaint was received about him or her from any Opposition party. A subtle message was sent to them that they should not do anything to incur the displeasure of the Opposition parties but keep them in good humour. Not only were the officers transferred, the movement of some them was restricted, while some had the distinction of being ‘watched’. One SP has already filed a case against the EC in the Calcutta High Court, seeking to know the reasons for the transfer.

Some more police officials are reportedly contemplating to file cases against the EC. Obviously, they took permission of the State Government to do so. On its part, the Trinamul Congress has started preparing to go to the Supreme Court against the EC. Obviously, the TMC and the State Government have chosen to take a confrontationist line against the EC.

Chief Minister Mamata Banerjee made some specific complaints against the poll body, like alleged intimidation of voters by the Central forces. The panicky voters, she alleged, dared not go to the polling booths to exercise their franchise. In some localities, the CRPF men forced shops and establishments, clubs and even temples to down their shutters. In one case the owner of a reputable sweetmeat shop of Kolkata was slapped by a senior police officer for the ‘crime’ of keeping his shop open during polls. The entire incident was photographed and telecast by TV channels. Mamata has questioned the right of the EC to impose undeclared curfew on poll day according to its whims.

The Election Commission is a constitutional body. It is not above the Constitution. Let us examine the powers the Constitution has given the EC. Article 324 of the Constitution says:

“The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections of Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).”

The State list of the Constitution assigns maintenance of public order to the State excluding “the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power”. The Constitution does not empower the EC to arrogate to itself before, during and immediately after the elections, the powers of law and order from a State Government. But for a long time now the EC has been doing exactly that without any constitu-tional provision to this effect. But the EC insists that even after taking over the powers of law and order, it is the State Government which shall be responsible for the maintenance of law and order.

This time the West Bengal Government said in case of any law and order problem arising during elections, the EC will be responsible for dealing with the situation. Immediately the EC refuted the State Government stand and clarified that in spite of EC taking over law and order, it is the State Government which would continue to be responsible for it. This is an anomalous position. Suppose the EC orders the removal of an SP, familiar with the situation prevailing in a district, and a law and order problem arises which the new incumbent finds it difficult to handle. Can the EC shirk its responsibility and throw the ball back in the court of the State and hold it squarely responsible?

The EC deploys Central paramilitary forces during election without so much as consulting the State, far less with its consent, even though the State remains responsible for the mainte-nance of law and order. Article 324(6) of the Constitution says:

“The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause(1).”

Here ‘staff’ means electoral staff. There is no provision in the Constitution for the EC requisitioning, deploying and determining the period of deployment of Central forces. The EC has arrogated this power to itself. Of course, it can say that everybody has ‘accepted’ it. But acceptance does not mean constitutional or legal sanction or validity. The same goes about the Model Code of Conduct. It has been ‘accepted’ by the parties and candidates but it does not have any constitutional or legal basis.

Since T.N. Seshan’s time, the EC has been arbitrarily widening its powers. As its actions have never been challenged, it has come to believe that it is a law unto itself and others. I remember on one occasion the late Pramod Mahajan of the BJP had gone to Assam during elections. He convened a press conference on the election day in the local party office at Guwahati, not to discuss anything even remotely connected with Assam elections but to state his party’s views on other things. The EC forthwith issued an order prohibiting the holding of the press conference and served a show-cause notice on Mahajan. Does the Constitution or any law in the statute book give any power to the EC to ban any press meet by any party during polls? No, it doesn’t. Since Mahajan thought it prudent not to challenge the EC decision, it became a precedent to be used by the EC on all such occasions in future.

The Constitution does not enjoin any time limit on the EC for the publication of election results. So the EC has started another practice. If Assembly elections are held simultaneously in several States, it holds back the announcement of the results till the last poll in all the States has been completed. This is done on the specious plea of not allowing voters of one constituency or of one State to be ‘influenced’ by the result of another.

It passes understanding how the result of say, one constituency in Pathar Pratima in West Bengal can influence the voters of a constituency in far away Goa or Gujarat. The political situation is different in different States, the issues are different, even the contesting parties may be different or the same party may adopt different attitude in different States (as happened recently in case of CPI-M in West Bengal and Kerala). Should the publication of results be left to the sweet will of the EC?

Why should the EC not announce results within 72 hours of polling being held? And if for some reason it cannot do so in 72 hours, why should it not be required to submit a written report to the President explaining the reasons for delay?

The job of the EC is to conduct elections, not to deploy and control police or paramilitary forces. For ensuring safety to voters and for maintaining law and order during elections, a suitable mechanism may be put in place by representatives of the EC, the Centre and the State or States concerned. In case there is no unanimity, the matter may be referred either to the President or to the Chief Justice of the Supreme Court, whose decision shall be final and binding on all.

Article 324 (2) of the Constitution empowers Parliament to make laws about the Election Commission. It is time Parliament passed a law codifying the limits of power and jurisdiction of the EC so that it does not function arbitrarily. Parliament has already enacted the Represen-tation of the People Act, spelling out the do-s and don’t-s of the parties and candidates. In the same way Parliament should pass a law about the functioning of the EC so that it does not become a supra-constitutional body.

The author was a correspondent of The Hindu in Assam. He also worked in Patriot, Compass (Bengali), Mainstream. A veteran journalist, he comes from a Gandhian family and was intimately associated with the RCPI leader, Pannalal Das Gupta.

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