ACCOUNTABILITY OF A CONSTITUTIONAL BODY

A Study Of The EC’s Role In West Bengal

Nilotpal Basu

WHEN the reporters asked the chief election commissioner in the wake of the announcement for the election dates for the latest round of assembly elections in five states, as to why the polls were scheduled to be held in a single phase in Tamilnadu whereas in five phases in West Bengal, the CEC stated that this was so because all the political parties in Tamilnadu wanted it that way. A supplementary question as to whether such consultation with the political parties of West Bengal took place or not did not elicit any reply. Late Comrade Anil Biswas had remarked in response: “five or fifty, the Left Front will win the elections”. The Left did win West Bengal though Anil Biswas did not live to see that. But, this encapsulates the completely bizarre manner in which the EC had taken upon itself the task of conducting the elections. And, it is in this context that a serious political/constitutional question has arisen. Whether citizens, groups, parties have the right to ask for the accountability of constitutional bodies within the framework of the constitutional powers they enjoy. Some political commentators do not think that independent constitutional bodies can be asked questions about the manner in which they discharge their responsibilities. We emphatically disagree with them. Unless the manner of discharge of their responsibilities can justify the power that they are enjoying, then these bodies essentially fail in their accountability – something, which is a negation of the principle of democracy.

THE POWERS OF THE EC

The EC has been given wide powers in the Constitution for guiding, controlling and superintending the election to parliament and legislative assemblies in Article 324 of the Constitution. These powers had been further elaborated under Articles 325 to 329. Apart from that, the relevant and appropriate provisions of the Representation of the People Act has further reinforced the complete autonomy and independence of the EC. As the election process evolved, the political parties have agreed to a comprehensive code of conduct, which, although, has no statutory backing is accepted by them which adds further powers to the EC for enforcing this code of conduct as soon as the elections are announced. The enforcement of the code of conduct puts in place a special election regime which not only regulates all those issues and processes which directly or indirectly affect the conduct of the election, but also regulates develop-mental activities and personnel policies of the concerned government. However, the EC has to exercise these powers to attain the objective of holding free and fair poll within the letter and spirit of our Republican Constitution. There can be no two opinions on the independence of the EC in conducting the elections. But accountability is a completely different proposition. While the orders of the EC are sacrosanct and they are to be abided by all concerned – governments, political parties and individual candidates – the right to question its decisions  by all concerned is equally inalienable.

AREAS OF DISAGREEMENT

The areas where disagreement cropped up over decisions of the EC included – the manner of drawing up the final electoral rolls, the role of the observers, the manner of deployment of security forces and certain measures which sprung out of a perception shaped by opposition allegations rather than objective facts.

The question of electoral rolls is very crucial. Here, perhaps, the course undertaken by the Election Commission was seen to be most emphatically shaped by opposition propaganda. The intensive revision of the electoral rolls was supervised by the `special observers' selected by the EC much ahead of the elections which, in itself, was unexceptionable. But, since the criticism that the electoral rolls in the past in West Bengal had been largely manipulated was a fiction that had been authored by the mainstream media, these special observers wherever they went had a large posse of journalists and camera persons who egged on these observers (to which the observers largely responded positively) to delete names on a large scale. In many cases, the observers put pressure on the regular election hierarchy to comply with the opposition demand. There were attempts to strike off names, particularly in border districts, on the plea that even legitimate citizens were not bonafide voters because they are Bangladeshis. Even a CPI(M) MP was served a notice to prove that he was a bonafide Indian citizen! At this stage itself, it was becoming clear that emphasis was not on rectification of the list so much as it was to reduce the number of voters; regardless of whether they were bonafide or not. But the real trouble started with the EC’s decision to go for full-fledged intensive revision even after the publication of the final revised rolls. Earlier, at least those names which were deleted without any proper basis could be rectified by production of relevant documents; but after the final rolls names were deleted indiscriminately and without any reference to or compliance with the relevant legal provisions. This led to major problems on the day of polls with eminent citizens, freedom fighters finding themselves disenfranchised in spite of having all legal documents to establish their bonafides. The EC’s stock reply to questions as to how this could be reversed was that there will be enquiry as to why such reverses have taken place. Along with the problem of electoral rolls, an additional problem was  the mandatory stipulation by the EC  that all those voters who have been issued photo identity cards by the commission can vote only if  they produce the card even though they might have displaced those for reasons beyond their control and they were in possession of officially issued  documents to establish their identity. This was outright illegal in the sense that photo identity cards are not legal requirements but only instruments for avoiding possibilities of impersonation. Now the question is that whether questioning the EC’s role where EC is accountable for the disenfranchisement of the voters is illegitimate? The critics of the CPI(M) would like the people to believe that raising such questions is undemocratic. 

The EC’s course of action adversely affected the election campaign during the West Bengal election. The invoking of the West Bengal Prevention of Defacement of Property Act, 1976 – a law  not specific to the conduct of the elections and limited to Kolkata and Howrah – was forced by the EC on the state government and had it extended to the whole state to ensure a blanket ban. The Tamilnadu Open Places Disfigurement Act, 1959 limited to the municipal areas however were not sought to be extended to the rest of the state. Not only did the EC discriminate against the political parties of West Bengal to use the cheapest mode of campaign, most importantly, it denied the people of West Bengal to be informed about the choices that they exercise in the elections. All open public meetings were restricted till April 13 because of the ongoing school leaving examinations, the absence of graffiti and posters virtually left very little choice for the parties to take their message to the people because the first phase of elections started on 17th and the campaign for this phase closed by 15th at 5 p.m. The issue here is not whether the CPI(M) or the Left was inconvenienced, but, whether the fullest possible opportunity for the people to be informed was allowed or not. We think, it is legitimate for us to question the course adopted by the EC which adversely affects people’s participation. 

Another major area was the role of the observers. Now, to start with, the choice of observers is held in an extremely non-transparent manner. But the observers are expected to play a very key role since they are the bridges between the EC and the election hierarchy in the state. Though the observers are not entrusted with any executive powers and they are expected to operate only through either the chief electoral officer, district election officer - returning officer - chain of command or in case if this chain of command disagrees through the EC itself, they have been found to be flagrantly violating laid down procedures which raised questions about their impartiality. The fact that one of the observers who acted in the most unacceptable manner and assigned the `most notorious’ status to a constituency in a media outburst and had to be removed for breaching his brief. Was an officer who had pending CBI proceedings against him substantiates the charge of lack of transparency and integrity in the appointment of observers. Is this question and attempts to find an answer aimed at undermining democracy or is it to ensure accountability which, in its turn, will strengthen the democratic culture?

Another major issue that has clouded the election and brought about a sharp controversy is the EC’s decision to get rid of polling officials in crucial polling duties from among state government employees and teachers. The decision to have central paramilitary forces deployed within the polling premises exclusively is also a decision of a similar nature and completely undermines the right of the state government to deal with law and order as enshrined in the Constitution. These set of decisions are fraught with adverse ramifications in a federal situation. Is this constitutional question and a need to ask for a response of the EC on this an attempt which can be termed fascist or undermining the authority of the EC? We think, the answer is obvious.  

SOME BIZARRE DECISIONS

The EC decided that the candidates for election cannot take their vehicle beyond 200 meters from the polling booths. The Commission was perhaps obsessed that candidates will disrupt that the peaceful atmosphere near the polling booth if the vehicle goes right upto the polling premises. This underlines a deep distrust about the political parties and their candidates.  Little did the EC think about the implication. The average number of polling booths in an assembly constituency is 250 which spread across roughly 150 polling stations. If the candidates were to walk down 200 meters while visiting the booth and 200 meters to return to the vehicle, each candidate would be expected to walk 60 kms during the ten-hour voting period if they were to visit all the booths which is their legal right. Only when the EC was furnished with this calculation which brought out the absurdity of their proposal that they relented. 

Similarly, the decision to doubt the integrity of the polling process, if any polling booth recorded more than 80 per cent of the votes, even though there was no recorded adverse remark on the compliance of the stipulations.  These again brought out the deep distrust about the people and a complete failure to judge and obviously the need to welcome the democratic awareness of the people. Ultimately, the documents of all booths that actually recorded more than 80 per cent were crosschecked  but  found to be perfectly flawless establishing the misplaced paranoia. 

The raiding of the Party office of the CPI(M) to recover arms at the behest of an opposition candidate resulting in `nil seizure’ did not even lead to any regret being expressed by the EC. And only a defence of the observer who ordered this smacked of a lack of basic decency of the EC. Observers visited offices of the CPI(M) and insisted that the Party workers voluntarily contributing towards the election campaign must be charging money because that is the way it happens in other parts of the country. This betrayed a complete lack of objectivity and knowledge which is expected of the people who represent a constitutional body. 

THE LARGER IMPLICATION

In United States and the type of democracy that prevails there is eulogised by all those critics who questions CPI(M)’s right to question the EC. But do this critics have the time to find out what percentage of the voters exercise their franchise? It is a measly 35 per cent. In United States, most of the people perhaps who do not have that much of a personal stake to exercise their vote. 

But in India, can we afford to stay away from the polling booth. Dogged with so many problems -- poverty, unemployment, lack of housing, food, education and health care, the kind of government that we form and the kind of policies those governments pursue is vital for our day-to-day existence. It is, therefore, that we are indebted to our constitution makers that they envisaged a parliamentary system of democracy for these people – the poor, the underprivileged and the vulnerable who would use the voting right as an instrument to express themselves in surmounting these problems they face. 

Advocates of neo-liberalism, the world over, are advancing the need for decision making by `experts’. These experts are increasingly found to be trained in North American and European universities with a stint in fund bank sponsored institutions. The time has come to `legitimise’ them. That coincides with the need for `delegitimising’ the role of people’s representatives elected by people, who decide on the basis of their participation in policy discourses, which are a part of our vibrant electioneering. Clamping down on cost effective forms of propaganda, right of political parties in raising awareness through widest possible debate and dissemination of information are ominous portents of an attempted course of transformation of the elections to something that happens in US -- cannot be accepted. We do not need a `television debate driven’ election campaign.  Our Constitution makers yearned for an independent Election Commission and an independent people. The CPI(M) has to  work for that end regardless of  what the critics say.  Questioning the accountability of the EC is part of that task.