Lok Sabha elections: It would be wrong to assume EC faltered in its duties during NDA regime; it has to address historical fissures

Amid the post-mortems and analyses of the outcome of the 2019 Lok Sabha elections , one aspect that has found little notice once the process has been completed is the performance of the Election Commission of India (ECI). Whether it was the questionable delay in announcing the election schedule, or a putting out a schedule which appeared to suit the Bharatiya Janata Party and its prime ministerial candidate, or the failure to enforce the Model Code of Conduct against Narendra Modi or Amit Shah, the EC’s performance has not exactly inspired faith in its abilities to conduct a free and fair election. There’s an easy conclusion to draw here — since the Government appoints the Election Commissioners, it has obviously appointed the most pliable ones who would tilt the balance completely in their favour. It is also the wrong one. [caption id=“attachment_6680451” align=“alignleft” width=“380”] Representational image. AFP[/caption] In as much as the Modi years, so far, have been marked by a relentless assault on institutions of governance in ways big and small, it will require us to assume that previous governments were always governed by the better angels of their nature when it came to the EC. After all, the appointment process to the EC has remained almost unchanged since the Constitution was brought into force; the only change having taken place in 1993 when the number of election commissioners (apart from the CEC) was fixed first at two. It would require a great suspension of disbelief to imagine that a cunning plan to subvert the EC could’ve been hatched only by the Modi government. Pinpointing exactly why the EC failed is not going to be an easy task. Rather, much more deliberation is needed and some thought put into the matter before easy one-size-fits-all solutions ( such as simply involving more people in the process) are propounded. Similarly, the demand that all dissenting views be recorded in the final orders of the EC is simply not justified in law or good sense. For one, there is no requirement in law that the EC has to record dissents in the order communicated to the public. Second, when enforcing the Model Code of Conduct, it is not acting as a quasi-judicial or a judicial body such that even dissents should be made public. Even in a judicial body, the dissents are recorded in judgement and not on the actual decree which has to be carried out by the parties in question.

In its executive capacity, the EC has to seem to be united in its resolve. No doubt dissent should be recorded internally in the minutes but to insist that its speaking orders should mention them would be disastrous for the body. Consider, for instance, if three different election commissions gave different sets of reasons for a finding, even if they all concur on the course of action. It’ll undermine the cohesiveness of the body and open it to even more criticism in the middle of an election.

The internal differences spilled out in the open don’t augur well for the EC — it suggests a failure of leadership that can accommodate dissenting views and inflexibility to such views. On this front, perhaps blame can be laid at the feet of Chief Election Commissioner Shashank Arora. That said there are some things that the EC must do as argued earlier in this piece. The first and foremost being engaging different citizens groups (as opposed to only political parties) between and during elections to ensure free and fair elections. While the EC does engage with civil society on issues of voter turnout and awareness, it has been woefully lacking when it comes to making voting booths accessible, in ensuring non-discriminatory access to polling booths and engaging them as observers in the process. While one understands the EC’s hesitation in involving too many people with an unknown background in the process, it will go a long way in improving faith in the system if more people can see how it works. This might prevent the EC from being captured by one or more political parties, or even by one civil society group which can make itself heard loudest. This happened in a most perverse manner in Mizoram where, thanks to the “public pressure”, the EC was forced to make it harder for Brus living in refugee camps to cast their votes. The second thing that the EC needs to do is be far more transparent. While the EC prides itself on its transparency when it comes to matters to electoral rolls, turnouts and candidates’ assets, it is not particularly transparent or quick when responding to requests for information. This has allowed all sorts of wild conspiracy theories to surge making people question their faith in the process. Proactively assuring people about the security of the procedure and the measures being taken to ensure fidelity of their votes will go some way in addressing their concerns. A third change might be one of attitude rather than functioning. With electoral bonds becoming a reality and courts not particularly interested in setting aside the legal framework supporting these questionable instruments, it may be up to the EC to balance the scales even at the risk of offending the powerful. Given that the EC now has access to information about who has received electoral bonds and how much, its enforcement measures should be aimed at reducing the impact of such money power. Raids and income tax seizures will no longer do to tackle such unaccounted electoral funding at this scale. Conducting elections on a national scale in a nation as diverse and widespread as India is an unparalleled challenge, and at the best of times, the EC faces an unenviable task. Yet, even in the face of these odds, the EC has maintained a fairly enviable record in carrying out free and fair elections (notwithstanding the most one). It is up to the Commission itself.