Reducing Independence of the Election Commission of India – Explained, Pointwise

Introduction

The Election Commission (EC’s) independence and credibility has come into question in the recent phase of state elections in Assam, West Bengal, Tamil Nadu, Puducherry, and Kerala. The Madras High Court blamed the EC. It was for proliferating the second wave of Covid-19 during the electoral process by not acting in a credible manner. After this, EC approached the Supreme Court in order to confront such allegations.

Although SC has denied any immediate relief to EC, the Matter is still under consideration. Now the question comes that why the constitutional body like the Election Commission, with a prestigious past record of impartiality, is facing such allegations. A thorough analysis of all these aspects along with remedial suggestions would be provided in this article.

About Election Commission

• It is a permanent and independent body established by the Constitution of India to ensure free and fair elections in the country.
• Article 324 of the Constitution provides that the power of superintendence, direction, and control of elections shall be vested in the election commission. 
• This includes elections to parliament, state legislatures, the office of president of India, and the office of vice-president of India.
• It grants election symbols and also recognizes political parties.
• It issues a model code of conduct and keeps an eye on the election expenditure of candidates.

What was the case?

• The Madras High court accused EC of spreading the 2nd wave of pandemic and stated that its officers should be booked for murder charges. Similarly, the Media also reported the institution negatively and held it responsible for the second wave.
• The EC then approached the Supreme Court against such allegations claiming it as an act to undermine its credibility.
• The supreme court will deliver the final verdict in due time, although it has issued some advisories – 
  • It is important for constitutional bodies to take criticism from other constitutional bodies in the “right spirit”.
  • The media has a duty to report “the unfolding of debate in the court of law” and not merely the final verdict. Both aspects constitute are important for people’s right to know.

What are the criticisms facing EC at present?

• Criticism in Current Elections:
  • Election Commission planned a very long 8 phase election schedule in West Bengal amidst a pandemic. Further, even after the demand of merging the last few rounds of the election, EC showed no interest in the proposal.
  • Demarcation of phases and geographies appeared to favor the central Government.
  • Half-hearted attempts to ensure that Covid-19 protocols were followed by candidates and parties.
• Other Criticisms:
  • There have been allegations of EVMs malfunctioning and not registering votes.
  • It has also not been able to contain money power and muscle power. Today those who come to parliament and legislatures are mostly moneyed candidates.

Reasons behind reducing independence:

• Selection Procedure: The Chief election commissioner and other ECs are appointed by the President on recommendations of the central government. This raises a question of partisan behavior of officials towards the ruling party.
• Security of Tenure: EC is a three-member body with a chief election commissioner and two election commissioners. CEC enjoys a secure tenure like an SC judge. However, the other two ECs can be easily removed by the President on the recommendation of CEC.
• Post Retirement Jobs: The Constitution has not debarred the retiring election commissioners from any further appointment by the government. The government uses this loophole for compromising the independence of members.  
• Lack of powers hindering independent functioning: It has no power to derecognize a political party or control the extent of party expenditure. Further, the model code of conduct is not legally enforceable.  
• Inadequate Political Will: In the last 70 years numerous political leaders and parties became part of the government. However, very few were willing and able to bestow sufficient powers to EC for ensuring independent functioning.
• Misuse of State Machinery: In recent times, there has been a rising trend of targeting family members of election commissioners using state institutions like the Enforcement Directorate, Vigilance commission, etc. This creates additional pressure on them thereby compromising independent behavior.    

Importance of ensuring independence:

• Free and Fair Elections: A democracy can survive only when free and fair elections are conducted in it on a regular basis. This requires an independent EC which can curtail the use of money and muscle power and ensure adherence to electoral rules by all the stakeholders.
• Non-Partisan Behavior: The body can resist political pressures especially from the ruling party only when it enjoys a considerable degree of independence.
• Maintaining people’s Trust: The trust of the masses over the electoral process is contingent upon the degree of independence enjoyed by the EC. 
  • For instance, people’s trust over EVMs got reduced with increasing instances of partisan behavior by the EC towards the ruling party.
• Acceptability of Verdict: The losing parties accept the electoral verdict as they believe in the impartial and independent functioning of EC. A failure to ensure the same can create distrust among the parties and in extreme situations can give way to a coup.
  • For instance, the alleged election fraud in Myanmar elections gave the military an opportunity for a coup in February 2021. 

Steps taken to improve credibility and independence of Election Commission:

• Election Commissioner R.V.S. Peri Sastri (1986-1990) is credited with reforms like the introduction of EVMs and the reduction in the voting age to 18 years.
• Chief Election Commissioner T.N. Seshan (1990-1996) implemented the model code of conduct, took steps against muscle and monetary power in elections. He also prohibited election propaganda based on religion and caste-based hatred.
• The EC had launched a scheme for use of State-owned Electronic Media by political parties for providing a level playing field to every political party.
• C-Vigil Application had been developed for reporting cases of MCC violation by the masses. It allows the masses to check the authenticity of EC in rectifying their requests.

Other Suggestions:

1. Firstly, the EC must be appointed by a collegium as recommended by the Second Administrative reforms commission. It should comprise the Prime Minister, Speaker of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the Law Minister, and the Deputy Chairman of the Rajya Sabha.
2. Secondly, the government should expeditiously accept the 50 reform recommendations sent by the EC. These include: 
   • Rules on decriminalizing politics, transparent party funding, paid news 
   • Empowering the EC to countermand an election in cases of bribery.
3. Thirdly, the EC should make judicious use of its plenary powers under Article 324. In the Mohinder Singh Gill case, the SC said that Article 324 gives wide-ranging powers to ECI to ensure free and fair elections.
4. Fourthly, there must be a prudent cooling-off period for election commissioners in order to strengthen independence. 
5. Fifthly, the expenditure of EC should be charged upon the Consolidated Fund of India similar to other constitutional bodies such as the UPSC.

Conclusion:

There is a need to undertake multiple reforms. This is to reinstall the shaken trust of EC’s independence and credibility amongst the masses. To begin with, the commission can withdraw its overcautious petition from the Supreme Court signaling its ability to accept criticism in the right spirit.