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Saturday, December 05, 2020

We’re all worried about the fair name of EC; two-three decisions have created some dent: S K Mendiratta

The EC’s longest serving legal counsel makes it clear that he wasn’t consulted on the AAP MLAs case and on the decoupling of the Himachal and Gujarat elections, credits T N Seshan for the institution’s transformation, bats for simultaneous elections, and maintains that EVMs cannot be tampered with.

By: Express News Service | Updated: April 22, 2018 7:55:27 am
SK mendiratta in idea exchange S K Mendiratta with Senior Assistant Editor Ritika Chopra in The Indian Express newsroom. (Express Photo by Abhinav Saha)

When S K Mendiratta’s association with the Election Commission ended on April 1, the 79-year-old had been with the poll panel for 53 years, having served under all chief election commissioners except the first. While Mendiratta retired in 1997, he was retained by the EC on contractual basis for another two decades because of his vast knowledge in electoral law. Advisor to the EC on almost all matters of legal importance, he has been part of almost all of its biggest decisions.

ALSO READ | After SK Mendiratta revelation, AAP lashes out at ‘biased’ Election Commission

 Ritika Chopra: A lot of questions have been raised regarding the Aam Aadmi Party case, where its MLAs were disqualified on a complaint of office of profit. The Delhi High Court later held that the EC’s opinion violated principles of natural justice. You have a lot of experience in handling office of profit cases. What do you think of the case? Should the MLAs have been heard on the merits of the case before the EC gave its opinion?

I would not like to make any comment because in this case, I was not consulted. I was not asked for advice. To be honest, till today, I have not seen the opinion tendered by the EC and I have not seen the order issued by the High Court. Purposefully I have kept away… I was involved in this case up to the last order, where we held that they occupied this office.

ALSO READ | Not consulted on AAP order & Gujarat polls, both hurt panel’s image, says EC’s legal veteran

Ritika Chopra: One would think that you were consulted on all matters of legal importance.

I was on contract with them (the EC). So whenever they wanted my opinion, I gave it. If they don’t want my opinion on any particular matter, I can’t go and say, ‘No, no, sir, this is my opinion’.

Ritika Chopra: This is a hypothetical question. What if they had come to you on the AAP matter? Do you think it was a case of office of profit?

The High Court has itself said that they should have been heard. So what remains for me to say now? As per the Supreme Court’s earlier pronouncements, the petitioners have to prove that there were some pecuniary benefits given to these MLAs… The respondents’ case is that we have not drawn any personal or pecuniary benefits. It is a question of evidence.

Ravish Tiwari: Do you see the High Court’s observation on the matter as a setback to the EC?

The day on which this opinion was given, I was not in Delhi. I have not read the judgment or seen what expressions they used.

Ravish Tiwari: Why did the EC decide not to announce the Gujarat and Himachal Pradesh Assembly elections together, against established norms?

So again, with great respect, I would like to say that I was not consulted.

Ravish TIwari: You have seen the Model Code of Conduct in action. When results are on the same day, is it infringement of the code to have elections on different days?

I would not like to sit in judgment on their collective wisdom. They felt that these things can be decoupled, they have done it. It is for people to see whether that was right or wrong… They did not ask (me) and I came to know that the (poll) programme is being announced only at about 11 o’clock (that day).

When I reached office, I saw a scroll on TV that the programme was going to be announced. Even at that time, there was no indication that it would be announced only for Himachal. So, I thought both the things they would announce together… I was a little surprised.

Ritika Chopra: The AAP order and the Gujarat election dates were two of the most controversial EC decisions in the past one year. Isn’t it unusual for you not to be consulted on matters of such importance?

One of the reasons I decided to come today was to remove that impression. I was not consulted on the opinion given to the President (on the office of profit complaint against AAP MLAs), or on the announcement of elections in Gujarat and Himachal Pradesh, or when the Karnataka (poll) announcement was made.

Ritika Chopra: So you would be normally consulted…

Before that, for all the general elections, I was consulted.

Ritika Chopra: When the AAP matter went to court, the EC defended its decision. The EC has never defended its decision in court before. What is your view on that?

Previously, whenever we issued an order or gave some opinion, we always thought — and it was also my advice to the Commission — that we were handling all these things in a quasi-judicial capacity. And that if an order was issued in quasi-judicial capacity, no authority should go to the court to defend it. That the order should defend itself. Whenever in the past such questions arose, and they asked for my opinion, I said no, let the court decide it. This time I can’t say why they did this, who advised them and who appeared (in court)… It was definitely a deviation from the past.

Take a lower court. If the High Court takes up a matter against its decision, the lower court doesn’t go (in appeal). The EC is a very high constitutional authority… In a very old case once, they said that when you pass an order, you have to give all the reasons (justifying it). So you won’t supplement when that particular order is challenged. The order should defend itself.

Ritika Chopra: Leaving the EC after having served over 53 years… is there anything that worries you?

My only worry is that we have come to a stage where we are enjoying some reputation and that reputation has to be maintained… Otherwise, we have had so many fights with the government… everywhere we succeeded. I will give you one example. There was one by-election in Tamil Nadu and there were some complaints that the government was interfering and that local police would not be able to do justice, so we should post central police forces. Before that, we normally didn’t have them.

We wrote to the government that at least one CRPF company may be sent to that constituency for an urban area. I don’t know for what reason the government said no, ‘that under the Constitution, Central police forces can be sent to some state only at the request of the state government’. There were some other problems also. We wanted some observers and the government said no. Then we wanted a full-time chief electoral officer… I would give credit to Seshan (former chief election commissioner T N Seshan). He passed an order, in August 1992, that until these four-five issues are settled, I am not going to hold any election. Certain very important Rajya Sabha elections were happening at that stage… All these issues got settled (following litigation in various courts, including the Supreme Court)… because of that particular order… him (Seshan) saying I will not hold any election. I am sure that today nobody will take that (stand).

Ravish TIwari: So there was a Chief Election Commissioner (CEC) who went to the Supreme Court against the government. Now we have a situation where a CEC is accused of giving verdicts that are seen as pandering to the Central government.

No, normally nobody knows about election programmes. We don’t consult anyone… It is always kept a secret.

Ravish TIwari: What does such a charge (of bowing to the Central government) do to the institution?

We are all worried about the fair name of the institution. All those who have served the Commission, all the CECs who have retired, we had a meeting in March. The retired officers have an association by the name of FAME (Foundation for Advanced Management of Election). We feel the Election Commission’s name and flag should be kept flying.

Vandita Mishra: What do you see as a threat to the fair name of the EC? What is the nature of your anxiety today?

No anxiety, because public perception is the main force and strength of the EC. We have to see that public perception does not go wrong… These two-three decisions have created some dent in the fair name. I would not mince words.

Ritika Chopra: You said that former CECs have been in touch with you.

They were under the impression — particularly over the AAP matter — some of them thought that I must have given the EC opinion on it. So they asked me how I gave this opinion. I told them it is not my opinion.

Arun Prashanth Subramanian: Were you surprised that they did not seek your opinion in the AAP case and on the Gujarat election dates?

I was not surprised, but slightly disappointed.

Ravish TIwari: Were you consulted in the Sadiq Ali case (where the Supreme Court held that the EC was the only authority to decide disputes among rival groups or sections of a recognised political party staking claim to a name and symbol)?

There were two rulings on its basis. One was in January 2017 in the case of the Samajwadi Party, and the other late last year in the case of the ‘two leaves’ symbol.

That was the very first case we dealt with in 1969-1971… Consistently we have followed the law laid down by the Supreme Court in the Sadiq Ali case, because it says that in a democratic institution, the majority’s voice should be heard. We have always tried to see on which side the majority lies. The SP case was decided on that basis too. We found the organisation wing almost there, the legislative wing also there with that one group (the Akhilesh Yadav faction).

Shyamlal Yadav: What is your opinion on CECs retiring and joining politics.

M S Gill was not only a Rajya Sabha MP but a minister too. I would say that particularly those leaving the EC should not become members of political parties. That is my view. I told Mr Gill too.

Ritika Chopra: One of the most high-profile splits in a party in India was of the Congress in the ’60s. The hearings happened extensively over a year. You must have enduring memories…

One group had very big netas and the other had Indira Gandhi. Evidence was recorded and very prominent persons appeared for examination, cross-examination, re-examination… One day Dr Shankar Dayal Sharma, at that time he was the general secretary of the group led by Mrs Gandhi, was being cross-examined. Some questions were put to him about Mr Nehru. He got very touchy and in the courtroom itself, started weeping… just like a child.

At that time our CEC was Mr S P Verma. He told me to take aside Mr Shankar Dayal Sharma, get him some water, and calm him down. I took him to my section, he was there for 10-15 minutes. I had that experience of Shankar Dayal Sharma, who later became President, sitting at my table, and me getting him some water.

Unni Rajen Shanker: You have been in the Election Commission for over 50 years. Can you take us through how elections have changed, and how T N Seshan impacted them?

The greatest change that Mr Seshan brought in was the enforcement of the Model Code of Conduct. Earlier, it used to only be a piece of paper that we would circulate to all political parties. But if there was any complaint of violation of the code, we were not able to do anything. Seshan said, ‘They themselves framed this code, so I will take action if anyone violates it.’ The cognisance of the violations started with Mr Seshan. It has now become a potent weapon in the hands of the Election Commission. It is as if the EC controls everything now; that is the greatest change.

Arun Prashanth Subramanian: The EC is becoming a stronger body, much more assertive now than what it was 20 years ago. At your time in the EC, what were the low points?

There was no question of a low. I think we were going up and up. When I joined the Election Commission as a very ordinary assistant in 1964, it would just issue a notification that the (election) process has started. And when a complaint would be made, a telegram would go to the chief (electoral) officer and by the time an inquiry was conducted and a reply came, the election period would be over. Now, within minutes a complaint reaches the officer at the lowest level — at the police station level. Our role was also very limited back then and we intervened in very few cases — only if something very glaring happened. But mostly, elections would happen in the field and we would be sitting here.

People also did not know that there was something called the Election Commission. Some people would ask me where I worked and when I said the commission, they would respond with, ‘What office is this?’. And also ‘What do you do for the next 5 years?’. I will credit Mr Seshan for the name and fame of our department.

Arun Prashanth Subramanian: This new debate on simultaneous elections. What’s your view on it?

It’s a good system. If you see the ’51 and ’52 General Elections, and in ’62 and ’67, there were simultaneous elections for the Lok Sabha and Assemblies. This cycle broke only after the ’67 elections. If by some arrangement, it can be revived, I think it will be better because then governments can work undisturbed. But to my mind, this is not possible for at least the next three to four years because of logistical problems. Nowadays everybody is asking about the voting machines and for VVPATs (Voter Verifiable Paper Audit Trail). We will not be able to get the required number of VVPATs for the next three to four years.

Ravish Tiwari: What do you think of this change from paper ballots to EVMs and now to VVPATs? How do you view this mistrust over EVMs?

I would say that the mistrust is misplaced. I have fortunately been associated with the production and management of EVMs right from day one, and I am 100 per cent sure that EVMs cannot be tampered with. The way they are manufactured, the way they are stored, we take all administrative arrangements. And we demonstrate at every step, even at the polling station, all the steps. We even cast sample votes. Once polling is over, we follow the convoy to the storage centre. How can they say that some machines have been tampered with? I cannot agree with that. I am 100 per cent convinced that the system is foolproof. VVPAT of course will give them (the political class) more confidence.

Ravish Tiwari: How do you then address the concerns and objections of political parties and restore public confidence in this machine?

I am very sure, if a general referendum is taken, that most people will vote for the (EVM) system. If a party is winning in one state and losing in another, then will it say that in the state where it is winning, the machines are functioning well, and in the state it is losing, they are malfunctioning? If all the machines are to be tampered with, won’t they be tampered in favour of the ruling party? How can you expect them to be tampered in favour of the Opposition?

There was a theory propounded during the 1971 General Elections. At that time, some people said that some chemical-filled ballot papers had come from Russia. That if you put a stamp on that ballot paper, it would evaporate and disappear in two to three days, and the stamp that had been placed earlier would appear. We said that, firstly, if that has happened and chemical-filled paper has come from Russia, it is not like you can keep it in your pocket and roam about. For the Lok Sabha elections, tonnes and tonnes of such paper would have to come. And when we print a ballot paper, we don’t know where the name of the candidate will appear in the paper in every constituency. The order is determined not by the party but by the name of the candidate. If I am Ashok, my name will be referenced as A, and if I am Surender, then it will be S. So nobody knows. No one can say that in 2019 where the name of the candidate will come.

Similarly with EVMs. If you have to tamper with them, you will have to do it with the name of the candidate. But you don’t know the name of the candidate and where it will appear. So for whom should I tamper? You are at a loss.


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