The Election Commission’s (EC) demand for the power of contempt of court set the cat among the pigeons. As expected, it has drawn more flak and ridicule than support or sympathy.

The EC has sought to empower itself to punish anyone being ‘disobedient and discourteous’ towards its authority. It has cited examples of some countries whose election commissions have this power directly or indirectly. The countries mentioned include the Philippines, Ghana, Liberia, Pakistan, Australia and Kenya. The proposal is to amend the Representation of the People Act, 1951 by inserting section 169A, to extend the provision of Contempt of Courts Act, 1971 to the EC and its commissioners.

The accompanying Explanation spells out contempt as the ‘wilful disobedience to any instructions, directions, order or opinion passed by the commission or wilful breach of an undertaking given to the commission’. Further, it includes any word or action that ‘scandalises or lowers the authority of the commission’.

EC has given three instances of wild allegations: one, Delhi Chief Minister Arvind Kejriwal calling it Dhritarashtra blindly helping son Bharatiya Janata Party (BJP) Duryodhana win elections with the help of Electronic Voting Machines that had allegedly been tampered with. Two, Manish Tewari of the Congress party accusing the EC of becoming an “advocate of EVMs” trying to “bulldose the challenging political parties”. Three, Kejriwal questioning the integrity of the EC for doing everything to make BJP win.

The EC was also immensely hurt when Kejriwal cast aspersions on two commissioners, A.K. Joti and O.P. Rawat, for being close to BJP. This prompted Rawat, a perfect gentleman, to recuse himself from hearing all Aam Aadmi Party related matters in the future.

I don’t think the proposal is well considered. There is a basic difference between the EC and the courts. The latter are never heard in public, even to defend their judgments while the commission is all over the media all the time. Even then, the power of the courts itself is being increasingly questioned.

To be fair to the EC however, its anguish has to be understood in perspective. The EC has over the years become the most trusted constitutional body. All political parties accept its neutrality and fairness, except in stray cases where a party or a leader has felt disgruntled when the EC took action against it/him/her. Actually, some leaders, especially of the incumbent government, think that the commission should be harsh and stringent to all others except them. Some leaders expect gratitude from commissioners for their appointment and take offence when the commission does not oblige them – which is often.

The media was quick to attack the EC’s proposal. DNA commented, ‘Participatory democracy is not built on authorities quick to take offence.’ The Hindu called it, ‘unwarranted and poorly thought out’, ‘a travesty of our open and democratic system’, ‘harmful to free speech and criticism’. Making EC feel ‘scandalised’ or tending to ‘lower its authority – is a vague and subjective provision that should have no place in contempt law’. To this extent the criticism is unexceptionable. However, it goes on to add that there is ‘no reason to believe that public confidence in the ECI will be shaken or its superintendence, direction and control over the election process undermined by criticism, however tendentious or calumnious it may be’. This certainly is not a correct assessment. Public trust that takes years to build can come crashing down even with bona fide mistakes. The EC has been delivering the biggest and most complex democratic exercise in the world because of people’s trust in its fairness and neutrality. All surveys of the people’s perceptions about institutions have rated the EC highly. But if one is done today, I’m afraid the result will not be so rosy, as a lot of poison has been spewed on it in the wake of the EVM controversy by a swarming army of trolls of different hues, besides many political parties and large section of the media.

Public comments on the proposal have been sharp: ‘gagging the mouth of democracy’, ‘contempt of democracy’, ‘dangerous weapon even against genuine charges’, ‘a step towards dictatorship’.

Propaganda and rumours can set the country on fire, not just damage institutions. The perception of neutrality, independence and fairness of the EC has to be protected at all costs.

What is the solution?

The solution is two-fold: making the EC fully independent and giving it more disciplinary power over the political parties.

For the EC to not only to be truly independent but also to be seen as independent, the system of appointment of the election commissioners must change. The fact that the commission is appointed by the government of the day makes the appointing authority feel like a proprietor who expects the appointee to toe the line set by it. Often, disgruntled elements point fingers at a commissioner as pro-appointing party. It is ironic that perhaps the most powerful commission in the world has the most flawed system of appointment. Nowhere in the world, does the government of the day unilaterally appoint the election commissioner. It is always by a collegiums or even full parliamentary scrutiny/ interview. In some countries, the candidates are interviewed on television for the nation to see. Even in India, the judges of superior courts are appointed through a collegium – and not just the constitutional bodies, but even statutory bodies like the Central Vigilance Commission and the Central Information Commission. The Supreme Court has ordered the collegium system even for the appointment of the director of the Central Bureau of Investigation – a government department.

When I was appointed election commissioner in 2006, a top aide of Prime Minister Manmohan Singh told me that my appointment by the government of the day may be its last, as the prime minister felt that it would be in the interest of country to have a collegium, as demanded by Anna Hazare, among others. Why it did not happen, I do not know. Maybe sheer complacency, or procrastination or the desire to not weaken its power. The present government cannot be blamed if it has a similar inclination. But then, when it is so critical of the omissions and commissions of its predecessors, why not undo another long-standing wrong? After all, it claims to be a party with a difference that is making a new beginning for India in myriad ways. Can it rise above narrow political/ electoral considerations in the larger interest of the nation?

The second necessary reform for the independence of the EC is to provide protection to the two commissioners from removal, except through impeachment, as provided by the constitution, for the chief election commissioner (CEC), the sole member at the time of inception. They should not be made to feel like probationers trying to please the government. The appointment of the commissioners should be through a collegium and elevation as CEC automatically by seniority, like the chief justice of India.

The second reform should be to give the EC the power to punish the political parties (including de-registration) who commit a major violation of their oath or indulge in wilful disobedience of the lawful orders, like non-submission of accounts and audit reports, not conducting internal party elections, persistent violation of the model code, etc.

Free and fair elections are a part of the basic structure of the constitution and the EC its cornerstone. Its independence and credibility must be guarded and strengthened, whatever it takes. I wish Prime Minister Narendra Modi’s vision of a new India would include this essential reform.

S.Y. Quraishi is former Chief Election Commissioner of India and the author of An Undocumented Wonder – The Making of the Great Indian Election. He is a Distinguished Fellow at Ashoka University.