Election Commissioner Ashok Lavasa opts out of meetings on EC code till dissent is recorded

Ashok Lavasa, the election commissioner who disagreed with the poll panel’s decisions to clear Prime Minister Narendra Modi and Bharatiya Janata Party president Amit Shah of charges of violating the so-called Model Code of Conduct (MCC) — which regulates candidate, party and government behaviour during the elections — has, since May 4 recused himself from all meetings to discuss MCC issues.

He has insisted that he will do so only after dissent notes and minority decisions are included in the orders of the commission.

According to a person familiar with the development, the commission has not held any meetings to discuss MCC violations since May 4 because of this. The poll panel’s decision to clear Modi and Shah in all cases of MCC violations, made in a May 3 meeting came in for significant criticism.

This was followed by news reports that Lavasa had disagreed with the decisions, although this dissent wasn’t registered in the orders that were passed.

The orders themselves came ahead of a scheduled Supreme Court hearing in a case on the EC dragging its feet over complaints regarding violations of the code of conduct by Shah and Modi filed by Congress leader Sushmita Dev.

The specific complaints discussed at the EC meeting regarding Modi and Shah included the PM’s speech in Nanded in Maharashtra on April 6 where he referred to the majority being a minority in Wayanad (Congress President Rahul Gandhi’s second constituency); and for his speech in Varanasi where he said 42 terrorists were killed to avenge the death of 40 troopers in Pulwama. Shah was let off for his remarks in an election rally in Kerala where he purportedly said that it was difficult to make out if Wayanad is in India or Pakistan.

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The person familiar with the matter said that Lavasa has sent several reminders to the Chief Election Commissioner since May 4, to include minority decisions or dissent notes in the final orders. The Election Commission has not passed any orders on violations of the model code since, although it has asked those behind alleged violations for explanations, the official added.

“The commissioner had earlier sought to know why his dissenting note was not made part of the final orders issued by the commission,” said this person.

Chief Election Commissioner Sunil Arora did not respond to text messages seeking comment.

A former finance secretary, Lavasa differed with the decision of the two other members of the poll body, Arora and election commissioner Sushil Chandra, while deciding on the cases of model code of conduct violations against Prime Minister Modi and BJP President Shah. He suggested sending a notice to Modi, which wasn’t accepted. There were at least six complaints in which the PM was given a clean chit, while Congress president Rahul Gandhi was let off in one case.

A bunch of complaints pertaining to the violations of the model code of conduct, including one against Prime Minister Modi, for addressing former PM Rajiv Gandhi as “Bhrashtachari No 1” is now pending with the commission.

On whether the commission can go ahead with the meetings in his absence, the person cited above said the rules allow for a majority decision and therefore, a decision can be taken in his absence.

As per the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, if the chief election commissioner and other election commissioners differ in opinion on any matter, such matters are decided according to the opinion of the majority. The commission transacts its business by holding regular meetings and also by circulation of papers. All election commissioners have equal say in the decision making of the commission.

HT reported on May 6 that the EC had justified not including the dissenting opinion on the grounds that since the decision on the violations was not a quasi-judicial decision, the dissent was not recorded. However, a former CEC said on condition of anonymity that such dissenting opinions have to be included in the final order even in cases of MCC violations.

In 2017, the then EC OP Rawat recused himself from cases related to the Aam Aadmi Party after party leader Arvind Kejriwal questioned his independence.