Election Commission cannot turn away from BJP flouting poll norms

When did we last see success in municipal elections being celebrated with great pomp and show at the national level before an impressive tally was put up by the BJP on February 25?

Raucous rallies – part of “Vijay Diwas” – were taken out by BJP leaders at all the district headquarters in the country to celebrate the party's performance in the Maharashtra and Odisha municipal elections. Of course, that included the remaining poll-bound areas of Uttar Pradesh.

Questions are being raised at the timing of BJP’s celebratory stunt. At a time when UP was still waiting for the remaining three phases of the seven-phase Assembly elections, wouldn’t the celebrations have the potential to influence the electorate? Wouldn't voters in UP see the jubilations as sign of a “BJP wave” in both the eastern and western parts of the country, ripples of which are hard to miss their state?

That brings the role of the Election Commission (EC) of India into spotlight. How could the EC be oblivious to the fact that these celebrations could in fact impact the electorate in not one but two election-bound states?

The EC has put on hold counting of votes for Goa, Punjab and Uttarakhand elections for over a month, only to ensure that their results don't have an impact on the remaining elections to UP and Manipur Assemblies. In the same vein, just as the EC could put on hold three state election results, couldn’t it also postpone the Maharashtra municipal election results?

EC’s argument is simple: Municipal elections don’t fall under EC’s purview, and therefore, it has no control over the timing of either conducting those polls, or declaring their results.

Administration in election-bound states is controlled by the EC and anything which can influence free and fair elections is regulated by it. Previously, the Commission stopped the Centre from releasing the Bundelkhand package worth Rs 80 crores, which was sanctioned by Niti Ayog in 2016-17.  Similarly, EC also restrained the Goa government from releasing the first installment of grants under Pradhan Mantri Awas Yojana. 

In fact, EC has been adopting increasingly strident positions ever since TN Seshan started the trend in the early 1990s. During the current Assembly elections in UP, EC decided to shift an inspector general of police (IGP) and an excise commissioner only because their reports on liquor seized during polls were at variance.

It is therefore surprising to see the EC turning its eyes away from repeated attempts to influence the elections – be it BJP’s Vijay Diwas, or exit poll results run by a news website into the first phase of UP elections. The polls showed BJP emerging heads and shoulders above its rivals and used the trend to project that the ruling party in the Centre was going to form the government in Uttar Pradesh.

The issue here was blatant contravention of Supreme Court verdict banning such polls till the last phase of polling was over. The EC promptly lodged an FIR with UP police and the editor of the website was arrested. The matter ended there. But did it?

The owner of the website claimed that the polls had been commissioned by the “advertisement department” of the paper. That means that his paper had received some money to publish this “advertisement”. This qualifies the exit poll news as “paid news”, which is again banned by the EC. The Commission, however, kept mum on further probe or action.

The cherry on the cake was the denial by RDI – the company that is supposed to have conducted the exit poll – over having undertaken the task in the first place. While the media group claimed it received the exit poll from a firm called Research and Development International of India (RDI), the latter’s managing director Rajiv Gupta denied it saying his company was into human resource development and not election-related research. Then there is another RDI – Research and Development Initiative, headed by a psephologist, Devendra Kumar.

But, he too denied of having done this exit poll.

This is something like the 2005 Delhi blast case, in which all accused have been acquitted by the court. Who then engineered those explosions that claimed scores of life? Similarly, nobody knows who conducted the exit poll published by the news portal.

EC officials say their responsibility was to report the violation to the police and further investigations have to be carried out by the police. But, what if police sleeps over the case? 

EC's inaction in these cases, once again, portrays it as the “toothless tiger” it used to be in pre-TN Seshan era. Former secretary general of Lok Sabha, PDT Achary differs. Article 324 of the Constitution and subsequent SC verdicts have bestowed on the EC immense power to ensure smooth, free and fair elections.

Supreme Court, in its judgment in Mohinder Singh Gill and Anor versus Chief Election Commissioner and Others, has described Article 324 as the “reservoir of powers”. That means it can draw powers of the state whenever and wherever needed to conduct smooth execution of polls – referring to “superintendence, direction and control of elections”.

In the MS Gill case, the Election Commission had in 1977 declared the election for Firozepur parliamentary constituency “cancelled”, due to complaints of malpractices at certain places. Gill contended that the EC was not empowered to cancel polls in entire constituency but could only direct re-poll at the polling stations where malpractices had been reported.

The Supreme Court rejected the petitioners’ arguments. A constitution bench of the Supreme Court held that Article 324 is a plenary provision vesting the whole responsibility for national and state elections in the EC.

The SC defined Article 324 as “superintendence, direction and control of the conduct of elections”. It said these might cover powers, duties and functions of many sorts, administrative or other depending upon the circumstances. Article 324 vests vast powers on the Election Commission, essentially administrative, and marginally, even judicative and legislative.

The Supreme Court also observed in that case that Articles 327 and 328, which empower Parliament to make laws with regard to electoral matters, are subject to the provisions’ of the Constitution, which include Article 324.

The SC observed: “The framers of the Constitution took care to leaving scope for exercise of residuary power by the Election Commission in its own right, in the infinite variety of situations that may emerge from time to time in such a large democracy. Every contingency could not be foreseen or anticipated with precision. That is why there is no hedging in Article 324.”

The Commission may be required to cope with some situation which may not be provided for in the enacted laws and the rules. That means Parliament or state legislatures could enact law related to elections under Article 327 and 328 but they should not impede EC’s powers Article 324.

To tackle situations where the existing laws are absent, the EC must lawfully exercise his power independently and see that the election process is completed properly in a free and fair manner.

Does the EC’s responsibility end with just lodging an FIR?

No.

In fact, as Article 324 suggests, it has unbridled administrative powers and can ask the police to expeditiously investigate the case and bring those to the book who tried to influence “smooth conduct of elections” in Uttar Pradesh?

The buck ultimately stops at EC’s door.

Also read - Why BJP is celebrating even before winning UP polls