EC undermined due to weak institutions

A core staff of just around 400 borrowed from the Union government, leveraged temporarily with an additional five million staff from the Centre and state governments to manage polling for 900 million electors — more than 66 per cent of whom are expected to cast their vote this year — would be a recipe for disaster anywhere else except in India.

Miraculously, our system works because government servants pitch in beyond the call of duty to uphold India’s democratic credentials. Voter lists get updated on request, including online. Once registered, voters generally do not find themselves missing from the electors’ list on polling day. The polling process is orderly and security arrangements, to guard against disruptors, is fairly tight, including through self-regulation by the poll agents of the contesting parties.

The medium for polling is electronic. It is being enhanced to printouts or by showing your vote recorded on a screen, as evidence that the machine is not rigged. After the announcement of the results, governments have routinely changed hands for the past seven decades. Yet India is ranked 59th out of 167 nations for “Electoral Process and Pluralism” per the EIU Democracy Index 2018. But its ranking is significantly better at 21 for “Political Participation” and 23 for “Political Culture”.

You cannot really blame the Election Commission for the low rank. It has pushed for deep reforms. National and state parties have helped — up to a point. Starting in Kerala in 1960, spreading to Andhra Pradesh and then to Madras state and then nationally, political parties voluntarily bound themselves down to a Model Code of Conduct (MCC) which constrains the ruling party from exerting undue influence or using state resources illegally and stigmatises any candidate or party, indulging in divisive politics or using money or favours to buy votes.

In 1980, the Goswami Commission and the EC proposed that the MCC be converted into legislation with punitive powers. This was never agreed to unanimously. Expert opinion is divided on whether legislation would help improve compliance. The Representation of the People Act 1951 already lists the offences, including corrupt practices like promotion of enmity or hatred amongst citizens based on caste, religion or class as criminal offences punishable by law. The real problem is that the wheels of law move so slowly that justice is often delayed and therefore denied.

Happily, the social media has collaterally empowered the otherwise advisory MCC by instantly fingering violations — a speedy, albeit vigilante outreach against deviant candidates or parties. Social media platforms like Facebook are aligning with the MCC to block out offensive content. This is heartening.

Consider the multiple complaints lodged in the ongoing elections against Prime Minister Narendra Modi and BJP president Amit Shah for violating the MCC. The EC has given them clean chits so far. One of the three commissioners has dissented, even though all three are appointees of the Modi government. Compliance with the letter of the law, unsupported by its spirit, has not gone unnoticed. The EC is now on the social media watchlist for being lenient on violations.

It does not help that the selection of the CEC and other commissioners is solely in the hands of the government. The EC became functional in 1951 as a single-member commission despite the Constitution permitting multiple commissioners. In October 1989, Prime Minister Rajiv Gandhi sought to undermine CEC Peri Shastri, whom he perceived to be unduly uncooperative, by appointing two election commissioners just prior to the November 1989 elections. The new government of Prime Minister V.P. Singh abolished the new positions in January 1990 and the redoubtable T.N. Seshan joined as a lone CEC. By 1993, with Prime Minister P.V. Narasimha Rao’s government in power, the positions of two additional election commissioners were revived, solely to counter the “bulldog” — as Mr Seshan’s admirers called him.

A lone CEC helps in speedy decisionmaking but could be very biased. Multiple members spread the risk, but often fail to function collegially rather than mechanically opt for the easy, escape route of a majority decision. The undesirable practice of keeping the discussions and the dissent note secret just adds to the lack of transparency.

The MCC is not a statute; proceedings under it are not quasi-judicial and a reasoned order is not mandatory. But the EC can and should choose to do so. They could learn from the Reserve Bank of India. The Monetary Policy Committee — established in 2016 — is not a quasi-judicial body. But the record of its meetings, reasoned decisions and dissent are public.

Past CECs have favoured selection of the EC along publicly known, objective criteria by a diversified committee comprising the Leader of the Opposition in the Lok Sabha, the Chief Justice of India and the Prime Minister, rather than solely by the Centre. The process for their removal should also be uniform, as applicable to a Supreme Court judge, which only the CEC enjoys today. These institutional changes can facilitate fairer decisions and more collegial functioning. The judiciary has been very supportive of the EC so the problem is clearly lack of will among the political parties.

Regulating political parties is a subject ignored by our Constitution. It is the Representation of the People Act 1951 which recognises them as part of the political architecture and authorises the EC to register them for allotting election symbols. Over the period 1952 to 2014, the composition of parties has not changed much — national parties have shrunk from 14 to six, and state parties remained at 39. But 409 unrecognised parties have been registered. The EC cannot de-register them. De-registration occurs only if they are banned by the government or if they are prosecuted for fraud. Registration comes with income-tax exemption benefits, so that there is no incentive to dissolve a party voluntarily.

Effective watch over the income and spending of political parties is possible only when standardised accounting and auditing practices with punitive consequences for default are embedded in law. The anonymous electoral bonds introduced in 2018 have done nothing to enhance transparency, which is crucial to avoid the ruling party receiving funds for favours.

The EC is a child of political happenstance and jugaad, not thoughtful institutional strategy. It remains under-powered and under-used beyond the minutiae of election management. If politics is to be more representative and participative and political parties more democratic and transparent, foundational institutional reform cannot be postponed.