The Election Commission of India passed an unprecedented order Wednesday, ending the campaign in West Bengal at 10 pm the following day instead of 5 pm on May 17 as was notified earlier, and is the norm. It also removed the state’s Home Secretary, and a senior police officer.
The decisions were taken under Article 324 of the Constitution, in response to street violence in Kolkata between cadres of the BJP and Trinamool Congress.
Just a month earlier, on April 15, the ECI had told the Supreme Court that its powers to discipline politicians who sought votes in the name of caste or religion were “very limited” — only to turn around and crack the whip on Yogi Adityanath, Maneka Gandhi, Mayawati, and Azam Khan after being scolded by the court, which also said it would examine the ambit of the Commission’s powers.
ECI’s freedom, responsibility
There are just five Articles in Part XV (Elections) of the Constitution. The Constituent Assembly was concerned mainly with ensuring the independence of the Election Commission. Babasaheb Ambedkar introduced this Article on June 15, 1949, saying “the whole election machinery should be in the hands of a Central Election Commission, which alone would be entitled to issue directives to returning officers, polling officers and others”.
Article 324 vests “in an Election Commission” the “superintendence, direction and control of elections”. Parliament enacted The Representation of the People Act, 1950 and The Representation of the People Act, 1951 to define and enlarge the powers of the Commission.
The Supreme Court in Mohinder Singh Gill & Anr vs The Chief Election Commissioner, New Delhi and Ors (1977) held that Article 324 “operates in areas left unoccupied by legislation and the words ‘superintendence, direction and control’ as well as ‘conduct of all elections’ are the broadest terms”. The Constitution has not defined these terms.
Article 324, the court said, “is a plenary provision vesting the whole responsibility for national and State elections” in the ECI “and, therefore, the necessary powers to discharge that function”.
The framers of the Constitution, the court said, had left “scope for exercise of residuary power by the Commission, in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time…”
Importantly, however, the court, while observing that “legislators are not prophets but pragmatists”, and that the “comprehensive provision in Art. 324 (is) to take care of surprise situations”, underlined that “that power itself has to be exercised, not mindlessly nor mala fide, nor arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation.”
The court observed: “No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commissioner cannot defy the law armed by Art. 324. Likewise, his functions are subject to the norms of fairness and he cannot act arbitrarily. Unchecked power is alien to our system.”
ECI’s role in West Bengal
The Representation of the People (Amendment) Act, 1988 (Act 1 of 1989) introduced Section 28A in the RP Act of 1951, which said that all officers deployed for the conduct of an election “shall be deemed to be on deputation to the Election Commission” from the notification of the election to the declaration of the results, and “such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission”.
The situation in West Bengal — of some violence and vandalism, which was neither new nor alarming and critical — is covered by existing laws, and there was no need to invoke the residuary power granted to the ECI by Article 324. The ECI took action against officers for failing in their duties — nothing more was required, except the ordering of a probe. It does seem that the ECI did not take adequate precautions in West Bengal in spite of violence in the first six phases.
In N P Ponnuswami (1952), the Supreme Court held that even courts do not have the power to interfere with the electoral process, a view that it reiterated in Special Reference No. 1 (2002). Last week, the court rejected a plea seeking a direction to the ECI to advance the timing of voting to 5.30 am for the last phase of the election in view of the heat and the fasting of Muslims during the month of Ramzan, saying “We cannot get into poll times. It is the Election Commission’s call.”
The ECI’s credibility has suffered during these elections.
It had no convincing logic for a seven-phase election in West Bengal or a three-phase vote in a single constituency in Jammu and Kashmir, and gave no reason for not holding simultaneous Assembly elections in J&K and by-elections in Tamil Nadu. In taking action on complaints of violations of the Model Code of Conduct, it has been selective.
Editorial | Code of Misconduct
The reduction of the campaign time in West Bengal by 19 hours — to 10 pm on Thursday — seems clearly arbitrary. The ECI has punished candidates of the Congress, Left, and Independents — both in the constituency where the violence took place and elsewhere — for no fault of theirs.
As the Supreme Court has underlined, absolute power is the antithesis of constitutionalism. Article 324 protects the ECI, but does not allow it to become a law unto itself.
The author is a well-known expert of constitutional law.