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CEC, ECs interaction with PMO: Why this raises questions and breaches a red line

The Election Commission is a Constitutional authority whose functioning is insulated from the Executive and the three Commissioners ensure that they maintain a distance from the government —and are seen to be doing so — for this reason.

Written by Ritika Chopra | New Delhi |
Updated: December 23, 2021 11:44:27 am
CEC Sushil Chandra (centre) with ECs Rajiv Kumar (left) and Anup Chandra Pandey in Chandigarh Thursday. (Express Photo: Kamleshwar Singh)

Should a Government official send a note to the Election Commission that the Prime Minister’s Office (PMO) “expects” the Chief Election Commissioner to be present at a meeting the PMO will chair?

The answer, going by precedents and well-established red lines between institutions, is: No.

The Election Commission is a Constitutional authority whose functioning is insulated from the Executive and the three Commissioners ensure that they maintain a distance from the government —and are seen to be doing so — for this reason.

Some former CECs have, on rare occasions, written to the Prime Minister in the past.

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For example, in 1999, CEC MS Gill wrote to then Prime Minister Atal Bihari Vajpayee, proposing electoral reforms including a unified electoral roll. In 2016, CEC Naseem Zaidi wrote to Prime Minister Narendra Modi, seeking urgent release of funds to buy VVPAT machines.

“In both these cases, it was the CEC flagging an issue to the Executive on their terms, on a subject of their choice. In this case, it is the Government effectively summoning the CEC to attend a meeting called by the PMO. This is very unusual,” said an official.

Indeed, the three ECs don’t attend meetings or discussions called by officers of the government to maintain the image of independence in the public eye. In fact, government officers call on the three ECs, not the other way round. Apart from protecting the Commission’s image of independence, the latter is also a matter of protocol.

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It’s for this reason, sources say, that the tone of the letter written by the Law Ministry to the Election Commission on November 15 raises questions.

The letter states that the Principal Secretary to PM “expects” the Chief Election Commissioner to be present during a discussion. “An officer of the government, no matter how senior, cannot call the CEC for a discussion,” said a former officer of the Commission.

The CEC is learned to have conveyed his displeasure at the wording of the Law Ministry letter and stayed away from the video meeting —in which his subordinates were present. However, what still raises questions of propriety is that, subsequently, the three Commissioners agreed to join the interaction with Mishra.

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The independence of the Commission from the executive has been reiterated by the top court. In 1995, the Supreme Court, in its judgment in the TN Seshan v Union of India and Ors, observed that:

“It is inherent in a democratic set up that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated from the party in power or executive of the day. This objective is achieved by the setting up of an Election Commission, a permanent body, under Article 324 (1) of the Constitution.”

Significantly, the latest development comes when the Commission has, over the last five years, come in for criticism, especially from political parties that questioned the watchdog’s independence.

In 2017, the EC, then under Chief Election Commissioner Achal Kumar Joti, was criticised for delaying the announcement of the Gujarat election schedule. On October 12, 2017, the Commission had announced assembly elections in Himachal Pradesh to be held on November 9, but did not declare poll dates for Gujarat even though poll schedules of states going to the polls within a few months of each other are announced at the same time as per EC’s convention.

The Opposition had said this delay had given the ruling BJP in Gujarat more time to make announcements about government largesse.

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During the 2019 Lok Sabha elections, the EC, under Chief Election Commissioner Sunil Arora, was divided in its response to complaints alleging poll code violations, including those related to speeches by the incumbent Prime Minister Narendra Modi and then BJP president Amit Shah. At that time, Election Commissioner Ashok Lavasa had opposed the all-clear given to them on at least five occasions.

This year, the EC again came in for criticism over the delay in banning election campaign for West Bengal Assembly elections amid the fierce second Covid surge. The Trinamool Congress and the Congress filed petitions with the EC urging it to end campaigning and reschedule the remaining election dates in West Bengal in the wake of the Covid surge.

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But, ironically, its ban on roadshows, vehicle rallies, and public meetings of over 500 people in West Bengal only came as late as April 22 and an hour after Prime Minister Narendra Modi cancelled his four rallies scheduled there the next day.

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First published on: 17-12-2021 at 04:00:23 am
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