Madras High Court’s Observation: Is Election Commission of India Criminally Liable?

“Election commission officials should be booked on murder charges”[1]-Statement by Madras High court, “Election commission, High courts and Government failed to see the risk for upholding polls”[2]– Allahabad High Court observed during hearing of a case. These strong, strict and blunt statements are sufficient to show that courts are unhappy with the decisions of Election Commission. The Election Commission of India, the institution upholder of democracy is under question now a days as important pillars of democracy is raising question on it. These questions which are raised against it are questioning credibility of ECI. Although it is shining feature of democracy to raise questions and criticise but it also create a dent on the institution due to continuous throw of tomatoes on it, but it is also important now a days to see who is throwing these tomatoes to understand the past, present and future of the institution and its credibility.

ECI: History and Power

Election Commission of India is an autonomous body which is free from political influence. It is responsible for controlling and administrating the elections in India whether it is at national level, state level or district level or village level panchayat elections. It results in election of representatives for Lok Sabha, Rajya Sabha, State Legislative Assemblies, State Legislative Councils, President and Vice-President to Pradhan of village; all are elected with efforts and under administration of Election Commission.

ECI operates and gains power from Article 324 of Constitution of India and subsequently enacted Representation of People Act, 1951 (Representation of People Act, 1951 is an act of parliament for the conduction of elections in parliament and legislature of each state). Being Constitutional Authority, it is one of the few institutions of largest democracy of world which functions with autonomy and freedom along with Judiciary, The Union Public Service Commission and Comptroller and Auditor General of India.

The Election Commission was set up in 1950 and had one Election Commissioner. But later in the 1989, 16 October two additional commissioners were appointed. After very short tenure of two and half months these two posts ended in 1 January 1990. As a result of such confusion, The Election Commissioner Amendment Act 1989 was adopted on 1 January 1990 which turned commission to a body of three members, consisting one Chief Election Commissioner and other two commissioners usually retired IAS officer. The decisions in commission are taken by majority. They take salaries and allowances same as juges of Supreme Court of India by the rule of Chief Election Commissioner and other Election Commissioner Rule, 1992 ( Condition of Services).

According of Part XV of Constitution of India which is titled as ‘Election’ provides groundwork for proper laws and setting up mechanisms for conduction of elections. The Commission is controlled by Secretariat at New Delhi. The Election Commissioners are assisted in their duty by Deputy Election Commissioner (generally IAS officer). They are also assisted by Director General, Principal Secretaries, Secretaries and Under Secretaries.

At State Level, Election Commission is assisted by Chief Electoral Officer of the state who is also an IAS Officer of Principal Secretary Rank. At district level and constituency level, the District Megistrate (as District Election Officer), Electoral Representation Officer and Returning Officer perform election works.

The Commission is constituted as an independent autonomous body, so that free and fair elactions which is shining feature of democracy should be protected and can uphold the basic essence and structure of constitution. According to Clause (2) of Article 324, President appoints the Chief Election Commissioner and other Election Commissioner but after appointment, he has no authority to guide them and they can be removed only on the grounds like Judge of Supreme Court. According to Clause (5) of Article 345, Chief Election Commissioner can only be removed from office upon an order of by President supported by Parliament. The Election Commissioner and Regional commissioner can be removed from office by Chief Election Commissioner .To maintain the independent sanctity of ECI, the Chief Election Commission’s condition of service shall not be varied to his disadvantages after his appointment  in office.

Functions of Election Commission:

a) To supritent, direct and control the preparation of electoral role of all elections of Parliament and the legislature of every state and elections of offices of president and vice- president.

b) To conduct all the elections of Parliament and to the legislature of every state and elections of offices of president and vice- president.

c) To advice President and Governor of states on question of disqualification of any Member of Parliament or Member of Legislature respectively.

ECI have administrative power also:

a) Alloting territoral area for electoral constituencies in the country.

b) Organises and amend the electoral roles and register the eligible voters.

c) Inform dates and schedules of elections and scrutinise nomination papers.

d) Give recognition to the political parties and allot election symbols to them.

e) ECI appoints Chief Electoral Officer, District Election Officer, Returning Officer, Electoral Registration Officer.

Cracks in important pillars of democracy:

Cracks in any strong pillar makes it weak, same as it, faults in ECI make it less credible which need to be immediately focussed.

Paid news and buying own news channels are new trend in Indian politics. Politicians either pay heavy amount of money to popular news channels to show propoganda according to them. Generally, peope not focus on such thing that which channels are doing propoganda and which are not so that they can protect themselves from getting under influence of their propaganda. It is difficult for a learned person to differentiate now a days, so how can a normal citizen who is busy in doing his work and office a whole day and watches news to relax, can identify it. As Indian Diaspora is very interested in politics and general public affairs as result of which maximum population watches news and politicians watches their vote bank in these viewers so they try to influence them even on news channels through these paid news and oning their party funded channels which obviously speak for them only.

Another major issue related to television news channels is that they telecast the programmes of political parties which are happening in any other state than of state which is under election and Model Code of Conduct is appliedd. So, they (political parties and their leaders) continuously try to create influence indirectly even on voting day on the voters. These political parties know this faultiness of ECI very well and use excellently to gain votes.

Money power is not new in politics and elections .It is not even today taken seriously by ECI. In past, businessmen aid the political parties but at present they directly influence elections by buying MPs, MLC seats at Rajya Sabha and legislative councils of State for political parties. As a result of this act, political parties give benefits to these bussinessmen from office after being elected. According to a survey, by Association Democratic Reform (ADR), a civil society, 82% of Lok Sabha members are crorepatis. This figure increases every year as in 2004 it was 30% and in 2009 it was 58% of total members.

Misuse of government machinery by ruling parties is present at both state and central level.Government issues advertisement of their party with photos on banners before election with public money. Sometimes, one of ministers, chief minister visit officially but compaign to the party. Government vehicles and beurocracy are used for the party benefits. ECI issues guidelines but they have to strictly monitor and check the implementation of these rules.

After Supreme Court ordered to show cases against the person standing in election, ADR analysed in 2004, affidavit filed by 514 MPs of which 125 approximately 24.3% had criminal cases against them. This proportion saw 6% jump in 2009 the year when next Lok Sabha elections were held. Election after election these ratios keep on increasing. In 2019, nearly half of elected MPs, i.e. , 43.5% had criminal cases against them.

There are any voices raised against the Electronic Voting Machine by different parties but the parties itself raise the issue when they lost election as they wanted to play politics around it. It was not cleared by ECI, even on raising voices against it, how the VVPAT units are linked to the EVM if the letter is standalone machine as the commission claims. There are questions raised about the partners and vendors who manufacture EVM, which ECI refuses to answer. Above all these issues, there are consistant issue of duplicate voters and duplication of names and challenge for ECI to produce error free and comprehensive voter’s list.

Past and recent cases on ECI:

Taking very important issue of multiple duplicate names in voting list, there was a case in Kerala High Court. Ramesh Chennithala v/s Election Commissioner of India, 2021,division bench of three judges heard a PIL by MLA Ramesh Chennithala. He approached court for seeking assurance from court to dirct ECI to not to include duplicate name of voters in the voter list in Kerala Legislative Assemmbly elections. The Bench directed, “Election Commission should also ensure that sufficient state and central forces is posted at all voting places, to ensure fair and democratic elections”[3]. Bench added that “We are the prime-facie views that they are discrepencies in the final voter list published by EC”. In final statement court said, “To implement the above steps, steps should be taken on war footing basis. Order of this court should be implemented in letter and spirit, without any room for complaint”.

Such type of question itself a question mark on working and transpirancy of the ECI which is very valuable in democracy towards an institution which form base for democracy.

In case of State of Goa v/s Imtial Shaikh, 2021, Supreme Court, calling the appointment of Law Secretory of Government of Goa, a member of IAS, as State Election Commission,” disturbing”,The three judges bench of RF Narimon, B R Gavai and Hrishikash Roy J.J., held that such appointment of a government officer directly under control of State is a subversion of the constitutional mandate contained in Article 243 (k) of Constitution of India. Bench said,” Giving an additional charge of such an important and independent constitutional office to an officer who is directly under contol of State Government is in our view, a mockery of constitutional mandate”.

In recent case hearing in Madras High Court observed the Election commission is singe headedly responsible for second wave and called it “most irresponsible institution” and said its official can be booked under murder charges because they have allowed the political parties to take out rallies  and political gatherings which led to spread of pandemic more easily. About this statement ECI went to Supreme Court about its reporting in media but there also Supreme Court rejects the EC’s plea which wants restrain on media reporting of court proceeding b saying that “Madras High Court’s remark is harsh, metaphor inappropriate. The High Court did not seek to attribute culpability of Covid pandemic in country to EC. What instead it would have intended to do was to urge the Election Commission to ensure the strict compliance of covid related protocol during election.” In statement of SC, it can be easily seen  that it is also not ignoring the fact completely that there is fault in decision making of Election Commission but tries to show its sympathy about the harsh words only.

The above stated cases are very few in which the questions are raised not only on the decision making abilities of EC but this raises very important question in mind whether election commission is free or not.

Question of Freedom means:

When question is raised about the freedom of institution then it is not just the freedom from any constitutional or provisional pressure, political pressure or any extra institutional pressure. It includes internal pressure which arises with time on its own in the working functionaries which affects the decision making capacities of institution. It is laziness which develops in the institution when a same process or function is performed continuously over years and years. As in human being after continuous work for whole year there is need for vacation to settle down the mood and change it to fill with refreshment and joy , in the same manner in any institution whether government or private it is necessary to do some reshuffles after fixed interval of time to maintain the interest of employees working there and keep the institution free from more dangerous internal pressure .These reshuffles not include only certain changes in responsibilities but also includes changes which makes the employees to learn new skills and make their job some interesting for them. These types of changes can help in overcoming with internal pressure.

There is one more challenge with develops with time is laziness in work culture. Work culture is developed over time by a continuous process by juniors watching their senior colleagues working method. Juniors also follow the way on which their seniors go on; this process over long time creates idleness in the system which is followed by development of internal pressure on the institution of backlogs and all that things. If the seniors continue their work on old fashioned way which is in present changing in many government offices then it results in same process to be continued which did not matches with this fast growing and moving world means same work culture would be passed to young officials. So, to make institution fresh with maximum working capacity of their employees there is need for better work culture which is little less seen in such institutions.

To cope up with internal pressure and make efficient work places which have no external pressure it is important to focus on above mentioned things and create creative and less burden environment which helps greatly in efficient decision making of institution.

Conclusion

Election Commission is constitutionally free in its soul and it had tried its level best to maintain this status. Its power and functions both are unique in the democracy. There are countries in world which can be counted on finger which have election commission with such enormous powers and authority. It has also managed it power very efficiently. Even though there are cases on it but this institution is dealing with politics and politician and politicians to get the benefit not leave any method they saw in course of fulfilment of their political aspirations. So they sometimes to get sympathy from public blames EC, sometimes try different tactics. These things are very normal in politics and political scenarios but the question mark arises when non political institutions and academician point out something and then it can be seen from very far and very easily. For example the judgements of courts are read very carefully and public have faith and trust on judiciary so when the make any comment or pass an order then it instantly catches eyes of everyone whether he is political or non political person.

The institution which is handling the nerve of democracy have to be very careful, cautious and proactive in taking  future decisions which effect whole country and if during this process some lethargy is seen then an obvious question raises mind, “Is Election Commission of India Free?”.


[1] https://www.scconline.com/blog/post/tag/election-commission/ (Last visited 19May 2021)

[2] https://www.scconline.com/blog/post/tag/election-commission/ ( Last visited 19 May 2021)

[3] https://www.scconline.com/blog/post/tag/election-commission/ (last visited 19 May 2021)

Author: Devesh Pandey from Galgotias University.

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