Election Commission is not a postbox

The functions of the EC under Article 118 of the Constitution are supplemented by the Representation of the People's Order, 1972 and by the rules and orders made thereunder. The laws, rules and orders have one common overriding objective, that is, to supervise, control and conduct election by an authority which is impartial and of an independent character and fully well-equipped to accomplish the task entrusted to it and is also immune to any political pressure and influence.

It may be worthwhile to note that the term 'election' has both a wide and narrow meaning and in the fitness of things there cannot be any valid justification in not according to a wider meaning to the said expression. In fact, election activities embrace the entire process of election right from the time when a written notice in connection with the holding of an election is given down to the stage where the empowered official declares the result of the election. The reference is to the entire process culminating in a candidate being declared elected. Therefore, talking of election in a democratic country and referring to the locus standi of the EC, one has to bear in mind the entire election process that consists of several stages and covers many steps which singly or collectively may have consequential impact on the result of the process and thus on the democratic governance of the polity.

It has to be clearly and unambiguously understood that the EC is not merely concerned with the process of casting votes and the declaration of results. Those wishing to take a long and hard look at the business of election, particularly those who are involved in the thick of the things as also the concerned citizenry will appreciate that many prior efforts need to be undertaken in preparation for and in connection with the election. Those efforts are not an integral part of the actual selection by the citizens of their representatives. In reality, a wide range of pre-poll functions have to be administratively and judicially performed in order that credible elections can take place. An institution carrying an erroneous post box image in public mind cannot effectively do the mandated job.

The EC retains the right and authority to withdraw any official, public functionary or law enforcement personnel for unduly interfering or impacting the election results (Section 7 Clause 6 of the Representation of the People's Order, 1972). The provision of such empowerment cannot escape the attention of the discerning observer because action under the aforementioned section has clearly a definite and salutary bearing on the results of election. The question is, whether the EC can sufficiently energise the election official concerned so that they can rise to the occasion and do not wait for signals to take corrective action as soon as factual situation so demands. Let us not forget that under Article 126 of the Constitution, “It shall be the duty of all executive authorities to assist the EC in the discharge of its functions.” The pertinent worry is, whether the EC is demonstrably effective in exercising impartial superintendence, direction and control over the executive complement that is constitutionally obligated to render all administrative support. Without doubt, such support significantly affects the election results.

The EC, in view of its onerous and solemn duties should not hesitate to record its observations if there are credible facts and circumstances to believe that improper personnel have been appointed in an irregular manner to serve as election officers because such doubtful appointments will invariably affect the election results.

The appointment of Returning Officers by the EC is a very crucial function because not only such officers perform duties which are at least quasi-judicial in nature, their conduct and attitude significantly affects the election results. The Returning Officers are expected to keep them salves discreetly insulated from the effect of power politics, political controversies and their unholy influences. The EC, as the appointing authority, would do well, in the larger public interest and that of a democratic policy to keep these important considerations in mind. An EC that is concerned about the implication of such appointments and the consequent result will surely display the appropriate sensitivity.

The election offences, penalty and procedure to be followed have been described in Chapter VI (Section 73-90 of the Representation of the People's Order, 1972). Without going into the details of such offences and the penalties thereof, it may be impressed that timely detection of such offences by an activated outfit and speedy award of punishments will doubtless have a positive impact on the outcome of election results. The EC has to be proactive and show its teeth at the appropriate moment.

Specific attention is drawn to Section 91 of the Representation of the People's Order, 1972, wherein the EC has been empowered to stop the polls at any polling station at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with the law due to malpractices including coercion, intimidation and pressures prevailing at the election. Therefore, it is only proper to say that a focused and upright EC acting fairly can ensure correct results and not act as mere transmitter of messages as some quarters would like the public to believe.

Members of the public including at least some readers of this newspaper might find it interesting to know that Section 91A of the abovementioned order has provisions for prevention and control of pre-poll irregularities through the mechanism of Electoral Enquiry Committee. Unfortunately, such committees have not been aggressive and proactive in its performance in the past. The EC by energising and empowering such committees can significantly impact upon the election results. Expert views and experience indicate that the activation of such committees by the EC will add to its prestige and weight.

It would follow from the above that the EC plays a pivotal role in ensuring an acceptable election result. The moot point, legally speaking, is that our Election Commission is not a weak or toothless institution. The fact of the matter is that while political goodwill plays a major part in the desired functioning of the EC, there is no denying that men of true grit can actually put the necessary muscle into this constitutional body. We may not have the likes of over-lionised TN Seshan (former Chief Election Commissioner of India) in our midst but we would only be pragmatic to realise that ungrudging support of the civil-military bureaucracy in the form of manifestly just enforcement of laws, proper functioning of the institutions and the willingness of the major political parties to play by the rules are the real engaging factors in ensuring a free and fair election. That, however, does not detract from the paramount importance of witnessing a domineering EC whose brave disposition might actually dispense with the requirement of a caretaker government.

Muhammad Nurul Huda is a former IGP and Secretary.