Ashok Lavasa’s claim of dissent being stifled in EC disingenuous, goes against poll body's conventions

On Tuesday, Election Commission of India (ECI) in its majority (2:1) decision held that dissenting opinions in matter of Model Code of Conduct (MCC) will not be made part of the commission’s order and it will be recorded in the internal files only: as has been the convention. The question whether dissenting opinion of any of the three members in case of MCC violation should be made part of the ECI order or not came up after Election Commissioner (EC) Ashok Lavasa decided not to be part of the commission’s meeting as his ‘dissent’ in some of the cases of MCC violation was not registered and made part of the ECI order. Ever since Lavasa made his resentment public, serious questions have been raised on the independence of the ECI and lack of transparency in its functioning. [caption id=“attachment_1308371” align=“alignleft” width=“380”]  (File) Election Commissioner Ashok Lavasa. Image courtesy PIB[/caption] A study of the history of dissent in the Election Commission of India has become necessary following Lavasa’s decision to not attend meetings of the poll regulator on alleged violations of the MCC. Lavasa did not agree with the other two commissioners, Sunil Arora (Chief Election Commissioner) and Sushil Chandra, in finding Prime Minister Narendra Modi and BJP president Amit Shah not guilty of MCC violations. Lavasa wanted his dissent to be recorded in the EC order. When refused, he decided to boycott the meetings. Rule by majority is the very basis of a democracy, but dissent comes written into it. To that extent, Lavasa’s demand for recording his dissent is a fair ask. But democratic institutions are built as much on conventions as rules, thus making “precedent” also an important marker of the robustness of institutional democracy. The first fact that comes to light in perusing the history of dissent in the EC is that there is hardly any case related to the alleged violation of MCC that has caused serious dissension among the three members. There is no recorded incident of dissension on the issue of MCC, at least not in the public domain. Former CEC Navin Chawla, who weighed in on Lavasa’s side, told a website: “For the four years I was commissioner I dissented three or four times. I clearly remember that I was overruled, but that did not prevent me from giving me my dissenting judgment which I placed on the record of EC.” But all the cases where he recorded his dissent were on matters unrelated to MCC. So, Firstpost scrutinised more than 50 orders of the Election Commission on MCC violations going back more than ten years. What is strikingly similar in all these bald orders is the absence of words such as consensus, majority and dissent. They are issued in the name of the “Commission” without any qualification. Here some random examples from the 50 we studied: In 2012, when Shankarsinh Vaghela was let off after he issued an apology for hate speech, the order read: “Commission’’, in view of the aforementioned explanation, particularly his deepest regrets, hereby caution him to be careful in the future.” In 2012 while reprimanding Dilip Sanghani, Agriculture Minister of Gujarat for laying the foundation stone for road works in violation of MCC, the order of EC read: “Commission” hereby reprimands Dilip Sanghani, Minister of Agriculture, Government of Gujarat for the aforesaid violation of the Model Code of Conduct and cautions him to be careful in the future.” In 2013, finding INC candidate D K Sivakumar in violation of secrecy of voting rules, it said: “Commission” acting on the complaint asked the returning officer (RO) to deduct two votes.” 2019 Lok Sabha Elections: On 10 April, on the release of a biopic of Prime Minister Narendra Modi the order read: Commission hereby order that biopic should not be displayed in electronic media including cinematograph during the operation of MCC. On 16 April, finding Yogi Adityanath guilty the order read: Commission in exercising its power under Article 324 of the Constitution barred him from holding any public meetings, public processions, public rallies, road shows and interviews, public utterances in media (electronic, print, social media) for 72 hours. On 15 April, finding Mayawati guilty, it said: Commission bars her from holding any public meetings, public processions, public rallies, road shows for 48 hours. On 30 April, it said of SP leader Azam Khan: The Commission bars him from holding any public meetings, public processions, public rallies, road shows and interviews, public utterances in media (electronic, print, social media) for 48 hours. On 12 May, finding BJP leader Giriraj Singh guilty, the order said: The Commission condemned, censured and warned Singh to remain careful in future. In all these instances, the decision of the institution, the commission, takes centre stage, not the individual commissioners. There can be only two reasons for this. Either prior to Lavasa’s dissent, there was no dissension by any of the commissioners on MCC matters or they were overruled and not recorded. It is possible that dissent is recorded in the files of the EC even in MCC cases, but the decision is always presented as that of the commission. That, clearly, is the convention followed by the EC in MCC cases. Lavasa’s demand for changing this convention of implied consensus is not outlandish. It is a just demand in a democratic institution. But portraying a continuing convention as a major attempt at stifling the voice of dissent is disingenuous. The full commission meeting has rightly refused to tinker with the convention. The rules of the game cannot be changed in the middle of the game. That much commissioner Lavasa should have known.