EC’s Clean Chits to Modi Unbecoming Of Supreme Election Authority

ECI’s decision not to make ‘speaking orders’ in cases related to PM Modi, violates constitutional principle.

Former Chair of the Election Commission of India (ECI), SY Quraishi, writing in The Hindu on 7 May 2019, cited a 1977 Supreme Court ruling, in which it was observed: “Where these (the existing laws) are absent, and yet a situation has to be tackled, the Chief Election Commissioner has not to fold his hands and pray to God... to enable him... to perform his duties, or to look to any external authority for the grant of powers to deal with the situation. He must lawfully exercise his power independently, in all matters relating to the conduct of elections, and see that the election process is completed properly, in a free and fair manner.”

Quraishi held this to be the EC’s bible.

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Why Did SC Leave Adjudication to ECI? And Why Did ECI Dawdle?

In establishing the Central Information Commission of which I was the first chairman, I had advised my colleagues that they adhere to this simple dictum. I had cause to admonish my successors when they took a similarly helpless approach before the SC, when defending their failure to enforce compliance of their landmark ruling – on political parties falling within the definition of public authorities under the Right to Information (RTI) Act.

In matters concerning elections, Supreme Court – notwithstanding its jealous protection of its own stature – has left adjudication to the ECI. Yet, the ECI dawdled in acting on complaints of making speeches in the breach of conduct against Prime Minister Narendra Modi and BJP President Amit Shah for almost a month, bringing the Supreme Court’s order that it decide the matter before 6 May.

The EC then, with unseemly expedition, disposed of several complaints – exonerating the two leaders in every case.

Aghast, the thinking public then got the news that Election Commissioner Ashok Lavasa, had indeed dissented on five decisions taken by the ECI – one giving a clean chit to Amit Shah, and four to Mr Modi. Had Modi not, Lavasa asked, violated the EC’s guidelines (to desist from invoking the armed forces in an election campaign)? “Ashok Lavasa’s minority vote may not have changed the result,” holds Quraishi, “but dissent is a healthy sign of objective deliberation, and thus, presents a ray of hope.” Yet, that dissent was not recorded in the order.

ECI’s to Not Make Speaking Orders In Cases Related to Modi: A Violation of Constitutional Principle

My purpose in citing the Supreme Court ruling and citing the opinion of a distinguished former Chair of the ECI, is by no means to denigrate the incumbents of that high office. These are each former pillars of the service, whom I have known personally. Yet, there are principles that are the sinews of democratic function, a system of governance in which India is not merely exponent, but in my view, world leader.

These are the principles enshrined in Article 19 (1) (a) of our Constitution and spelled out in the RTI; transparency and accountability. The ECI’s decision not to make speaking orders in announcing its decisions in the cases concerning the PM and his party colleague is then, a violation of constitutional principle, and also of the party’s own manifesto in the 2014 election that had swept it to power.

I recall that the Full Bench of the Central Information Commission (CIC), in ruling on the disclosure of file noting in 2006, ensured that the dissenting note of the Commissioner – second only to the Chief – and his successor in office, was part of its order. The reputation of the then infant CIC suffered not a whit.

Rulings of ECI Raise More Questions Than They Answer

The purpose of speaking orders, as numerous learned justices of the apex court have reiterated, is to set at rest any question that might arise as to whether all issues have been taken into account. The Supreme Court justices are therefore, enjoined not to discuss SC decisions in public, but simply advise study of their contents. The rulings of the ECI in the cases cited on the other hand, raise more questions than they answer. They are not worthy of India’s supreme election authority, functioning as an apex. My respected colleagues on the Commission are capable of better. Or is my confidence misplaced?

The MCC clearly decrees, “Criticism of other political parties, when made, shall be confined to their policies and programme, past record and work... Criticism of other parties or their workers based on unverified allegations or distortion shall be avoided.”

Yet, in summarily dismissing PM Modi’s invective against a slain prime minister, ANI quotes the ECI to have held “Prima facie, we did not figure out any literal violation of Model Code of Conduct as given in Election Commission of India instructions. Case is therefore disposed off.(sic)”

(Wajahat Habibullah was the chairperson of the National Commission for Minorities. Prior to this, he held the position of the first Chief Information Commissioner of India. He was an IAS officer from 1968 until his retirement in August 2005. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)