As a constitutional body, the ECI must be credible
Over the last 50 days, the Congress, through its leaders and counsels, has made over 50 formal representations to the Election Commission of India (ECI). These representations cover a wide spectrum of violations by the party in power, from hate speech to the perverse misuse of the armed forces for political propaganda to campaigning by the PM right next to a polling station. Over this period, we have learnt some vital lessons and noticed some troubling infirmities in the manner in which the ECI operates.
The ECI is the apex body charged with the “superintendence, direction and control of elections” under Article 324 of the Constitution of India and has been vested with expansive powers to discharge its two-fold mandate: One, to ensure a level-playing field ( LPF) for all individuals; and two, to ensure that the party in power, with the vast resources at its command, does not gain an unfair advantage. Established apex court jurisprudence of over five decades has underlined the vast reservoir of inherent power of the ECI under Article 324 to do everything to maintain LPF and added that absence of specific statutory authorisation makes no difference to this large power. More importantly, the apex court has directly connected the EC’s powers to the basic structure of our Constitution through the following syllogism: LPF is necessary for free and fair elections; the latter is a sine qua non for democracy; democracy is part of basic structure and hence unamendable even by a constitutional amendment!
No previous election has been as fraught with recorded violations as this one. With creative attempts to circumvent electoral laws through biopics, web series, movies, false propaganda disseminated on an unparalleled scale and other forms of surreptitious and proxy advertising, this election has seen many firsts.
In many cases, the ECI has acted expeditiously and decisively. Yet this record of diligence is marred by an unprecedented reverence and deference towards PM Narendra Modi and BJP president, Amit Shah.
Of the 11 complaints against Modi/ Shah, the ECI has demonstrated a visible reluctance to take action even in the most egregious of cases where there is little room for a charitable interpretation. It has given a clean chit in all the cases (decided so far) and all through unreasoned orders. Even to do this legitimisation, the ECI has taken over 30 days ( that too after SC directions) which amounts to a decision by default in the fast moving electoral window of only 60 days. One of the Commissioners has expressed dissent in several cases but no copies of dissents are supplied. Copies even of the unreasoned rejections are not uploaded expeditiously and supplied highly belatedly.
Justice has a tendency to catch up with individuals in power when they least expect it. Modi, Shah and, indeed, the ECI, shall have to answer eventually to the people and to history for, among other things, their conduct and its debilitating impact on the integrity of institutions. Let us, for now, examine some key areas of reform that are urgently required.
First, since the ECI’s response time per complaint varies wildly (from prompt and immediate action in some to humongous delay in Modi/Shah cases), we propose that complaints be decided within a 48-hour time frame. Otherwise they become redundant and infructuous. It must be remembered that conceptually, the ECI can act only ex post facto. It is hardly ever curative and can only aspire to be prophylactic. No rewind button exists and hence decisions must be rocket fast; otherwise the wrongdoer effectively reaps the benefits of his wrongdoing with impunity.
Second, there is no template for orders. As a result, orders can be detailed (as in the case of Pragya Thakur) or completely vague. All Modi/Shah responses are two paragraph ones, with no criteria, no law and no reason. Dissents, though reasoned, are never shared.
Third, denial of reasons is based on the fundamental misconception that administrative orders do not require reasons, something patently contrary to several established Supreme Court (SC) judgments enunciating the salutary principle that form does not characterise the order and that all decisions having adverse civil consequences, by whatever name called, require reasons. That is also vital for superior adjudicators like High Courts and the Supreme Court to review such EC decisions effectively and meaningfully. The absence of reasons, per se, can be valid grounds to strike down a decision. The ECI must adopt a response format which explains the reasons for an offender’s guilt or innocence.
Fourth, the problem of institutional memory and precedents needs to be addressed. To illustrate, the ECI took action against other individuals found guilty of hate speech yet seemed content not to apply the same standard to Modi/Shah despite identical or worse language used by the latter. Numerous such cases decided by discriminatory standards prove this point. This variance of standards cannot exist in an organisation which houses seven decades worth of precedents and experiences. There must be both continuity and consistency of approach, with the standards being applied fairly and uniformly.
An institution stands on the shoulders of those who came before it. Therefore, for strength and credibility, they must necessarily rely on precedents and norms of procedure, instead of the personalities of those who staff it.
But above all else, like all constitutional and statutory bodies, they must uphold the rule of law.
Without any exceptions.
Abhishek Singhvi is a Member of Parliament; senior advocate, Supreme Court; national spokesperson, Congress; former chairman, Parliamentary Standing Committee and former Addl Solicitor General. This article is co-authored by Muhammad Khan, an advocate of the Supreme Court.
The views expressed are personal