Over the last 50 days, the Congress, through its leaders and counsels, has made over 50 formal representations to the Election Commission of India(REUTERS)
Over the last 50 days, the Congress, through its leaders and counsels, has made over 50 formal representations to the Election Commission of India(REUTERS)

As a constitutional body, the ECI must be credible

Its record of diligence in acting decisively is marred by its reverence and deference towards Modi and Shah
By Abhishek Singhvi and Muhammad A Khan
UPDATED ON MAY 08, 2019 08:10 PM IST

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

SHARE THIS ARTICLE ON
Close
Elections in Kerala are punctuated by several controversies, both past and present (File Photo)
Elections in Kerala are punctuated by several controversies, both past and present (File Photo)

Espionage to smuggling, scandals spice up every poll in Kerala

By Ramesh Babu, Thiruvanathapuram
PUBLISHED ON MAR 03, 2021 07:26 PM IST
  • controversies and scandals were part of the state polity in the last three decades and mushrooming digital media also played its part in amplifying them, said a political observer.
Close
The 1962 baggage at the turn of century was such that for 40 years, subsequent governments did not dare build border roads on the ground that these could be used by the Chinese army to enter the hinterland in case of a conflict.(PTI)
The 1962 baggage at the turn of century was such that for 40 years, subsequent governments did not dare build border roads on the ground that these could be used by the Chinese army to enter the hinterland in case of a conflict.(PTI)

Why 2021 political rhetoric is no match for 1962 fighting in Ladakh

By Shishir Gupta, Hindustan Times, New Delhi
UPDATED ON MAR 03, 2021 02:15 PM IST
  • India and China came close to war last year after Indian army commanders atop Rezang La-Rechin La ridge threatened to fire at the advancing PLA tank regiment that sought to dislodge the Indian troopers.
Close
Approximately half of the countries use population for delimitation, while another third use registered voters. Nowhere is it based on area and for good reasons (HTPHOTO)
Approximately half of the countries use population for delimitation, while another third use registered voters. Nowhere is it based on area and for good reasons (HTPHOTO)

J&K delimitation: Go by the population rule

By Haseeb Drabu
PUBLISHED ON MAR 01, 2021 06:39 PM IST
Having already decided on the number of electors as well as the number of elected, the only part of delimitation that has been left to the Commission is the electoral cartography — the redrawing of boundaries and enclosing people within the constituency framework. Notwithstanding these debilitating infirmities in the context of J&K, the redrawing of the constituencies is an extraordinarily complex and highly contentious exercise. It can potentially alter the electoral demographic balance.
Close
Representational image. (AFP)
Representational image. (AFP)

Congress needs to worry more about rebels than opponents in Puducherry

By Abhishek Jha, Hindustan Times, New Delhi
UPDATED ON FEB 22, 2021 06:32 PM IST
The only time the Congress has lost Puducherry, it has been because of a rebel. The Congress and DMK together have won over 50% seats in every assembly elections in Puducherry since 1980, except in 2011
Close
At a January meeting to review projects, Prime Minister Narendra Modi expressed displeasure at the process-driven bureaucracy (ANI)
At a January meeting to review projects, Prime Minister Narendra Modi expressed displeasure at the process-driven bureaucracy (ANI)

Behind PM Modi’s stinging critique of the IAS, a Jan meeting holds the clue

By Shishir Gupta, Hindustan Times, New Delhi
UPDATED ON FEB 17, 2021 09:35 AM IST
  • Prime Minister Narendra Modi had given bureaucrats an earful at a January meeting of the country's top officials and underlined the price that India paid for their slow pace.
Close
PM Narendra Modi was emotional while giving a farewell to Ghulam Nabi Azad from Rajya Sabha.
PM Narendra Modi was emotional while giving a farewell to Ghulam Nabi Azad from Rajya Sabha.

Salute to Ghulam Nabi Azad underlined PM Modi’s personal ties with rivals

By Saubhadra Chatterji | Edited by Abhinav Sahay, New Delhi
UPDATED ON FEB 14, 2021 03:37 PM IST
  • Leaders from the Congress and other Opposition parties have many stories to show that the Prime Minister has maintained personal rapport with leaders cutting across political boundaries.
Close
Officials carry out search and rescue operation at Tapovan Tunnel, after a glacier broke off in Joshimath in Uttarakhand’s Chamoli district causing a massive flood in the Dhauli Ganga river on Sunday. (File photo)
Officials carry out search and rescue operation at Tapovan Tunnel, after a glacier broke off in Joshimath in Uttarakhand’s Chamoli district causing a massive flood in the Dhauli Ganga river on Sunday. (File photo)

Not just climate change, Chamoli disaster was human-induced

UPDATED ON FEB 08, 2021 12:15 PM IST
Stone quarrying, blasting of mountains and digging of tunnels in the base of the mountain system for two dams on Rishi Ganga and Dhauli Ganga rivers played havoc with the local ecology
Close
In this file photo, a man hangs on to pole holding a Sikh religious flag along with a farm union flag at the historic Red Fort monument during a farmers protest against new farm laws in New Delhi(AP)
In this file photo, a man hangs on to pole holding a Sikh religious flag along with a farm union flag at the historic Red Fort monument during a farmers protest against new farm laws in New Delhi(AP)

Perception is the truth in information warfare over farm laws

By Shishir Gupta, New Delhi, Hindustan Times
UPDATED ON FEB 04, 2021 01:42 PM IST
  • The Chinese were among the first to recognise the role of information warfare to weaken the adversary from within
Close
Union Minister of Finance Nirmala Sitharaman. (Ajay Aggarwal /HT PHOTO)
Union Minister of Finance Nirmala Sitharaman. (Ajay Aggarwal /HT PHOTO)

A new confidence about India reflects in a bold Budget 2021

By Monika Halan
UPDATED ON FEB 01, 2021 09:59 PM IST
Finance minister Nirmala Sitharaman has chosen to spend on generating future income using the higher capital spending, which has gone up by 35.4% over the previous year
Close
Shaibal Gupta also made a pioneering contribution in explaining the historical roots and the evolution of Bihar’s politics, which have today become the staple of everyday political analysis. (FACEBOOK)
Shaibal Gupta also made a pioneering contribution in explaining the historical roots and the evolution of Bihar’s politics, which have today become the staple of everyday political analysis. (FACEBOOK)

The life and times of a Patna intellectual

UPDATED ON JAN 31, 2021 06:20 AM IST
Shaibal Gupta was rooted and cosmopolitan; idealistic and pragmatic; and an insider and outsider — all at the same time. Patna’s public life will not the same without him.
Close
Foreign Minister S Jaishankar's address on India-China ties is a reminder to Beijing that the bilateral relationship between the two Asian powers is not a one-way street.(AP/File)
Foreign Minister S Jaishankar's address on India-China ties is a reminder to Beijing that the bilateral relationship between the two Asian powers is not a one-way street.(AP/File)

Jaishankar yellow-cards China for violating pacts, spells out the India way

By Shishir Gupta, New Delhi
UPDATED ON JAN 29, 2021 03:02 PM IST
  • S Jaishankar’s speech on India-China ties signals India’s determination to continue to stand up to Xi Jinping’s expansionist plans for Asia as an equal and makes it clear that nothing that Beijing does against India will be overlooked, or allowed to go unpunished.
Close
Jack Ma, founder and executive chairman of China's Alibaba Group, in Chiba, Japan, June 18, 2015 (REUTERS)
Jack Ma, founder and executive chairman of China's Alibaba Group, in Chiba, Japan, June 18, 2015 (REUTERS)

Jack Ma story: China’s deep strategic ambition

By Manoj Kewalramani
UPDATED ON JAN 29, 2021 04:50 AM IST
This statist vision of the future is very different from the government creating a level-playing field for private capital to compete and the market to do its job. It is about the State guiding capital and private entities towards what it believes are national strategic priorities, rather than allowing them to simply focus on generating greater revenue.
Close
A Nihang Sikh aboard a horse inside Red Fort on Tuesday.(Sanjeev Verma/HT PHOTO)
A Nihang Sikh aboard a horse inside Red Fort on Tuesday.(Sanjeev Verma/HT PHOTO)

Republic Day raid was pre-meditated, planned well in advance

UPDATED ON JAN 28, 2021 02:17 PM IST
With Delhi Police under firm orders not to open fire, the armed Nihang Sikhs provided the cover for the tractors to roll towards Red Fort.
Close
A video of an unruly tractor moving waywardly towards police personnel at ITO emerged on Tuesday as farmers protesting against farm laws deviated from their route and moved inside the Capital.
A video of an unruly tractor moving waywardly towards police personnel at ITO emerged on Tuesday as farmers protesting against farm laws deviated from their route and moved inside the Capital.

How unruly farmers tried to embarrass India on Republic Day

UPDATED ON JAN 27, 2021 02:09 PM IST
The tractor-borne unruly farmers were minutes away from India Gate when they were blocked by New Delhi Range police.
Close
How do we address this cyclical pattern of hailing and rubbishing financiers? It is time for an honest review of the entire issue (Getty Images/iStockphoto)
How do we address this cyclical pattern of hailing and rubbishing financiers? It is time for an honest review of the entire issue (Getty Images/iStockphoto)

The policy landscape around digital and physical micro-lending

By Amol Agrawal
UPDATED ON JAN 25, 2021 06:08 AM IST
In 1870s, a similar backlash emerged in Poona and Ahmednagar districts of the Bombay presidency. The agriculture boom in the early 1860s led farmers to take loans from moneylenders
Close
SHARE
Story Saved
OPEN APP