On its powers and limitations in conducting free and fair elections

The Election Commission (EC) has come under intense scrutiny over the last few weeks for its inability to take swift action against those violating the Model Code of Conduct (MCC). It took a rap on its knuckles by the Supreme Court for the EC to crack the whip. In a discussion moderated by Anuradha Raman, S.Y. Quraishi and Trilochan Sastry talk of the EC’s powers in imposing the MCC, and the controversy over NaMo TV. Edited excerpts:

Mr. Quraishi, with the EC recently taking action against some politicians for violation of the MCC, do you think it has finally demonstrated that it can bite?

S.Y. Quraishi: It is a pity that we needed the Supreme Court to remind the EC of powers that it always had. Even advisories for senior leaders is good enough because it leads to a lot of naming and shaming, which is effective. To say that the EC is toothless in ensuring that the MCC is followed is wrong. It probably needs a little more will power to act strongly, particularly against the ruling party, because the ruling party always has an advantage which has to be neutralised. I think the EC has enough teeth. Just polite advice to the Prime Minister is enough to cause ripples. To underestimate the power of advisories is wrong.

But it took a long time for the EC to actually act. Is there reason to believe that the EC is compromised?

SYQ: I wouldn’t use such a harsh word. The EC has always been under observation. Not only does it have to be fair, it has to appear to be fair. Now that it has got a rap on its knuckles, I think it will be bolder than it has been so far.

Does it worry you that the EC is taking its own time to act against the Prime Minister?

SYQ: It is very unfortunate that instead of debating the conduct of politicians, we are debating the EC. The EC is partly responsible because of delays. Had it acted promptly, it would not be in the dock.

What are your thoughts on the Supreme Court interim order directing political parties to provide full information on each and every political donor in a sealed cover to the court? I recall a conversation where you had serious misgivings about electoral bonds.

SYQ: I am partly disappointed and partly happy. I am happy that it has taken note and commented that there is no transparency [in the electoral bonds scheme]. But asking that the information be delivered in a sealed envelope is beyond my comprehension. It is a grave error and very unfair. Is it a state secret? Parties know who the donor is, the government knows, and the donor knows who he or she gave the bond to. It is only you and I who don’t know. Another sad thing is that while the elections are in process, the Constitution has debarred any intervention by the court. The fact that the court has to intervene again and again is a sad situation.

Trilochan Sastry: There is a procedural issue and a substantive issue. On the procedural issue of whether the court should have intervened during the election, I have no comments to offer, but on the substantive issue as to whether such actions should be taken against hate speeches and on the countermanding of elections in a constituency in Tamil Nadu where cash was seized, the EC’s decision is welcome. How institutions become aware of their power is a work in process and a long one at that. The EC is still discovering its powers, and if it is being nudged and that helps, it is okay.

On the issue of giving information on electoral bonds in a sealed cover to the court, we are very patient. We would have preferred something faster. The court perhaps felt it did not want to interfere when the election process was underway. So, it found a compromise and directed parties to declare who gave how much funds in the form of electoral bonds in a sealed cover. We will see on May 30th what it does. But the best practice all over the world is complete transparency.

Does the EC suffer from some inherent structural problems in the manner of the appointment of the Chief Election Commissioner (CEC) and Election Commissioners?

SYQ: The appointment system to the EC must improve. Right now, the Election Commissioners are appointed by the government of the day and they might feel beholden to the government or the government might feel that they should be beholden. In any case, public perception is that if they have been appointed by a particular government, they will be soft. A collegium system of appointment should be considered.

It is not as if the Supreme Court’s manner of appointment of judges is free of problems. You appear to be suggesting that the collegium system is working fine.

SYQ: Yes, there may be problems, but this is the best system possible. If you see the electoral system in the world, the shortest cut-off for appointment is in India. Everywhere in the world, such constitutional appointments are made by either a collegium or even by the parliamentary committees and there is a parliamentary endorsement. In some cases there is a live interview of the candidate so that the whole nation is privy to the appointment. It is only in India that the most powerful Commission in the world has the most defective system of appointment. Mind you, it also puts pressure on the incumbent. The Commissioners, even if they’re acting bona fide, if the public perception is, ‘oh they must be soft on the government’, as is happening just now, to insulate them from these kind of allegations and accusations, a neutral system of appointment is perhaps the answer.

Should the MCC be enacted into a law?

TS: I think good practice sometimes is better than a law. When we pass a law, we are unable to anticipate every contingency. I think we need to trust the EC to exercise its powers. The moment you make a law, some comma or some phrase somewhere will be interpreted this way or that way and it will end up in the courts. And there will be a legal tangle. The Supreme Court has kind of endorsed the idea of a MCC without giving it a legal status. I think we should just let it be like that.

SYQ: I am absolutely against making it a law. It is a clever trap. The MCC will be taken away from the EC’s discretion and it will have to be given to the judiciary in which case it will take 20 years for you to know whether some act was committed. Now this MCC acts like a fire brigade — if there is fire, it has to be extinguished right then and not after five or 10 years. Second, its moral authority should not be underestimated even if the ultimate punishment under the model code is advice, warning, censure or reprimand. Its contribution towards forming public opinion is firm. The moment a leader gets a notice, it becomes a newspaper headline. The moral authority of the model code is very strong and the leaders are actually scared of getting a notice under the model code. Third, anything which is in the model code is also part of different laws, and action is simultaneously taken under the laws also. The only difference is that the action will be known to you after 10 years, whereas, here, a notice is served even to the Prime Minister: you violated the model code, please reply why action should not be taken. And the reply comes in 23 hours. This kind of speedy compliance never happens even to a law of the land.

The week before the announcement of election dates is when we usually see a flurry of advertisements from the government. This year was no exception. How is it that the week before the EC actually announces the dates, the government is prepared with its advertisements?

SYQ: All I can say is that the dates are decided by the EC and governments are very curious to know what the dates are and we never let them out, so that the surprise element is not taken away. The incumbent government cannot plan its political moves accordingly.

TS: It’s very tricky to distinguish between a genuine policy decision which is announced and an announcement which is for the sake of getting votes. I think everything cannot be legislated. Something has to be left to the good sense of the voters.

What actually is the problem with the TV channel that was launched in the name of the Prime Minister a few weeks after the MCC kicked in?

SYQ: I don’t have the full facts, but prima facie there is no problem in a political party or a political leader owning a channel. We know that in the south every politician seems to have a channel. So when we were formulating the guidelines for the expenditure monitoring division in 2010 and 2011, we came across many channels which are owned by political parties. What they were doing was that their appearance on their own channels was shown as nil expenditure. We said, nothing doing. After all, there is a notional value attached to the telecast on the channel, which will have to be counted and shown as expenditure incurred. NaMo TV, if it is owned by the party or Mr. Modi himself, there is no problem except that the expenditure on the publicity on the channel has to be accounted for.

TS: I want to add one point here. You know the framework in which we are discussing all this. It seems to me that we are convinced that wrongdoing will happen and we are trying to fix it by this rule or that rule. Then we are falling back on the MCC. I think the only long-term solution is voter awareness. If the three of us seem to feel that a certain practice may not violate a constitutional right but it violates a moral code, I think when the people of India largely realise that, these things will disappear and among a large section of politically aware voters this is already happening.

Do both of you agree that the EC suffers from no limitations whatsoever?

TS: It can exercise far more powers when it chooses to, but the one power it does not have is to de-register political parties and you know there are parties which never contest elections, which do not submit their accounts, which do not follow their own internal Constitution of holding elections on time. And the EC becomes powerless. I think with due caution they should be allowed to de-register. In any case, there is judicial oversight.

SYQ: This has been pending for 20 years. We have been demanding that the power to register does not include the power to de-register, according to a Supreme Court judgment. We went to the government and asked them to empower us. We have nearly 2,000 parties. Most of them are bogus; they are there only for money-laundering. We cannot do anything. To that extent, the EC is toothless, yes.