For: Amit Ahuja and Susan Ostermann
Faced with dominant governments, EC struggles to be a free and fair arbiter
The Election Commission, one of India’s gold standard institutions, has come under fire. The complaints centre around ruling party capture and bias, not election fraud.
In the lead-up to the 2019 general elections, the opposition accused the BJP of contravening EC rules by appropriating credit for the heroic actions of the armed forces in its campaign and using the PM’s TV broadcast on an anti-satellite missile test for political gain. In response, the EC did little. Serious questions were also asked about the scheduling of elections to favour the ruling party. Now, in the lead-up to contentious elections in West Bengal and elsewhere, more MCC violation complaints have piled up. Mamata Banerjee was sanctioned, and while action was also taken against BJP representatives for incendiary remarks, a perception of bias has hung over the conduct of the Bengal polls.
The problem, or so the logic goes, is that the BJP is in power at the Centre and has control over the selection of election commissioners. This has been true of every ruling dispensation in India and has not much mattered to date, yet this time seems different to many.
In light of the beating the EC’s institutional capital appears to be taking, it is important to remember that its reputation and mandate were not built in a day. The EC’s move from a largely idle aspect of the bureaucracy to one central to the functioning of Indian democracy was contingent upon at least three conditions.
First, as a necessary condition, institutional constraints had to be weakened, as they were for the executive in particular with the decline of the Congress party dominance and emergence of coalition governments between 1989 and 2014. Second, political actors had to demand a competent, neutral arbiter, as state-based parties did during the phase of party system fragmentation and party proliferation in the 1990s and 2000s. Third, entrepreneurial bureaucratic actors had to take advantage of moments of political opportunity, as T N Seshan did in the early 1990s when he elevated the status of Chief Election Commissioner to that of a Supreme Court judge, introduced election observers and voter ID cards, and stood up to the executive.
The EC was able to expand its powers in the 1990s, at least in part, because of the credibility it earned during the 1977 post-Emergency election. It pulled off a free and fair election in which Indira Gandhi was voted out of office. This outcome ran counter to popular expectation and the EC’s reputation was bolstered by this feat.
What changed? In 2014, Narendra Modi’s BJP became the first party to capture a parliamentary majority on its own after a gap of 25 years. This heralded the return of a strong executive. The 2019 election resulted in the further strengthening of the executive and weakening of the opposition.
In an era of executive dominance, the EC’s ability to act as an independent referee has been curtailed. The executiveappointed election commissioners are perceived to be pliant, or realise that asserting institutional autonomy will come at great personal cost. For instance, in the case of election commissioner Ashok Lavasa, questions were raised about the timing of the investigation by central agencies/departments of his family members coinciding with his dissenting notes against the EC’s weak response to allegations of model code violations by the BJP and its leadership during the 2019 elections. Instead of going on to take over as CEC, Lavasa resigned from the EC in 2020. This behaviour is not unique to the BJP. In the 1980s, in its own moment of executive dominance, the Congress also tried to bully assertive election commissioners.
The Supreme Court, which helped preserve the autonomy of the EC in the past, has also shown deference towards a dominant executive since 2014. Its refusal to make the consequential electoral bonds program transparent, despite pleas by the EC and the RBI, is illustrative of this.
Where to from here? The EC is a publicfacing institution. Its legitimacy in the eyes of the citizens and political actors turns on its performance. Elections in first-pastpost, winner-take-all electoral systems like India’s are high-stakes contests. If the EC’s competence is questioned, or its behaviour is perceived as being partial, it will lose this credibility. In fact, as recent democratic experience across the world has highlighted, the neutrality of referee institutions cannot be taken for granted, even in longstanding democracies. They are vulnerable to being undermined from the outside as well as from within. Without executive self-restraint or harder institutional firewalls, the EC’s credibility remains under threat.
Ahuja and Ostermann are with the University of California, Santa Barbara
Against: N Gopalaswami
Painting the EC with a partisan brush has become a favourite poll pastime
I demitted office as chief election commissioner ten years ago but whenever an election season is on, I find that the one pastime indulged in often by political parties and commentators is questioning the neutrality of the Election Commission (EC). Mostly it is with reference to two issues —one, is on the decision to hold multi-phased elections in a state, and the other is on the EC’s decisions on complaints of violations of the Model Code of Conduct (MCC). Over the years, elections have become more competitive and, hence, more fiercely fought. This has made the task of the EC more difficult. Secondly, while the proliferation of visual media, and their cut throat competition is welcome, since incidents get aired more quickly, the downside is that now there are more ‘views’ to contend with than ‘news’ to act upon. The cry for instant justice when not fulfilled leads to allegations of partisanship.
Take the case of the current elections to the West Bengal assembly. The eight-phase polling schedule came in for much criticism even though elections have been held in many phases in other states too. Elections in West Bengal are known to be high-voltage affairs, fought fiercely where emotions run high. Panchayat and assembly elections in the state have seen considerable violence in the past. The last assembly elections had seven phases and now, with almost a 10% increase in polling stations, one more phase was added. By no stretch of imagination can it be called a partisan decision. Those who alleged it could not be unaware of the ground-level situation.
It is amazing to see the eagerness to question the EC’s neutrality even if it means taking some liberty with facts. Two instances come to my mind in the ongoing elections. One in Assam, where a presiding officer, unwittingly it seems, used the vehicle of a BJP candidate to carry the polled EVM, when his official vehicle broke down. It was surprising to read a comment from a senior journalist of a leading newspaper which said ‘the EC did not follow any of its own protocols while transporting the EVMs in Assam’. See how one instance of violation of protocol by one out of the 10,592 presiding officers on duty on one particular day is generalised to condemn the EC as a whole. To any lay reader that comment, a clever play on words, would convey the view that on that day in all of Assam, the EC violated transport protocols for partisan reasons. The second instance was in one polling station in Chennai, when some unused EVMs and one partially used VVPAT were carried by the staff in a two-wheeler vehicle. TV and newspaper reports mentioned EVMs, but avoided mentioning that the EVMs were not polled ones but unused machines. This led to allegations of attempted fraud and partisanship, a case of suppression veri(suppression of the truth).
But it is in respect of the EC’s decisions on MCC violations that critics literally go overboard. The EC is required to follow a proper procedure in dealing with complaints of MCC violation in campaign speeches. An authentic version of the speech has to be obtained from the field and it may require translation from the local language. An opportunity has to be given to the ‘offending’ speaker. Any comment or observation that is objected to has to be understood in the context in which it was made and so the entire speech has to be read, not just one word or phrase and then decision given. It is true that some comments are so crude that such an exercise may not be needed at all, but most of our political speakers are a sophisticated lot and so the text of the speech has to be carefully gone through. This time-consuming exercise leads to criticism by those who want a decision here and now. Many commentators and opinion makers also feel that theirs is the correct view and if the EC’s decision does not go as they expect or wish, then they don’t hesitate to paint the EC with a partisan brush. Of late the EC has been resorting to banning the ‘offending’ speaker for a day or two which is welcome but now the quantum is subject of the same partisan barb.
Behind all the comments of partisanship remains the badly concealed, but thoroughly untenable assumption that an election commissioner appointed in the tenure of one government will invariably be soft towards it. For those who view EC through this prism, any action of the EC is suspect. A bipartisan committee to select election commissioners has been mooted repeatedly by the EC itself, as well as many other committees and commissions, and this could be a partial answer. Will that be a total cure for this malady? Perhaps not. In saying this I am reminded of what the 17th century Sanskrit scholar-poet Neelakanta Deekshita in his work Kali Vidambanam said about the way to win a case before a tough judge —‘Pakshapato adhiropyatam’, allege lack of impartiality! Does that ring a bell?
The writer is a retired chief election commissioner