Wednesday, April 17, 2013

Doublespeak on electoral reforms

The paid news case is no longer just about Ashok Chavan. It concerns every individual and institution opposed to the sway of money power in elections
Politicians everywhere are known to indulge in doublespeak and our politicians are no exception. But some recent pronouncements of our Law Minister only show that our politicians may have very few serious rivals in this sport. Not long ago, the Minister was all praise for the Election Commission of India’s real time and effective monitoring of election expenses.
Now the same Minister has told the Supreme Court that the Election Commission is not concerned with the correctness or otherwise of the account of election expenses submitted by a candidate. In other words, the government wants the Commission to do an outstanding non-job!

Sound ‘investment’

That the candidates in our Assembly and Parliament elections spend huge amounts, many times over the prescribed ceiling, on election expenditure is no secret. They seem to have come to realise that this is an investment capable of giving phenomenal returns which no other enterprise could rival and, so, the best way of getting rich quicker. No wonder, therefore, that even panchayat elections boast of huge expenditures incurred by the contestants. That some unscrupulous sections of the media found innovative ways to help themselves to some part of this huge expenditure during election time is too well documented by now. It is also common knowledge that the effort has been raised to a fine art, prescribing different rates, a base rate for coverage to a paying candidate and none for his non-paying rival, and a premium rate for high and sustained praise for the payer, and hell and damnation for his rival.
The Press Council of India (PCI) gave the first opening to the Election Commission to take deterrent action in this new game christened ‘paid news,’ when the ECI followed up a PCI finding in respect of a candidate in the 2007 elections to the Uttar Pradesh Assembly, and disqualified her by using its powers under Section 10 A of the Representation Of The People Act, 1951.
But when the Election Commission was approached to exercise that very power in the case of the then Chief Minister of Maharashtra, Ashok Chavan, who, contesting the 2009 election to the Maharashtra Assembly, was alleged to have indulged in ‘paid news’ in a big way as found by an intrepid journalist after meticulous investigation, the Law Ministry seems to have woken up to the danger of a determined ECI exercising its power. Wanting to stop the Election Commission in its tracks, it has filed an affidavit before the Supreme Court seeking a ‘plain reading’ of that section of the law that was examined and interpreted beyond a shade of doubt by a three-judge Bench of the Supreme Court in the R. Shivarama Gowda Vs P.M. Chandrasekhar case (AIR 1999 SC 252).
The Election Commission seems to have unwittingly fallen into a trap in answering, through an interim order, the jurisdictional issue — apparently a red herring — raised by Mr. Chavan in the proceedings initiated before it. In the light of the unambiguous decision of the three-judge bench of the Supreme Court — which leaves little scope for any speculation on the issue of the powers of the ECI under Section 10A of the Act — the Election Commission could have gone ahead without harbouring any doubt. Nor should it have let anybody cast doubt and much less allowed him to get away with it. But that was not to be. The order of the Election Commission on the issue of jurisdiction, rejecting the objection raised by Mr. Chavan, the respondent, was challenged before the High Court in Delhi. Having lost the case there, Mr. Chavan has gone to the Supreme Court in an LPA (Letters Patent Appeal). Precious time has been lost in the process and the case initiated in November 2009 has yet to cross the first hurdle — three years down the line.
The government has joined Mr. Chavan in challenging the Election Commission’s power to disqualify a candidate under Section 10A of the Act for his failure to submit a correct and true rendering of his election expenditure.
The three-judge Bench of the Supreme Court lucidly brought out the scheme of the Act and the issues that have to be agitated in an election petition under Section 100 of the Act before the High Court where the remedy sought will be the unseating of the winner on the ground of corrupt practices, one of which is exceeding the limit on expenditure. No such election petition lies against any candidate except the winner. In contrast, Section 10 A can be invoked against any candidate on the ground of submitting a false or incorrect rendering of his election expenses. If proved, it will result in the disqualification for a maximum of three years even if he were the winning candidate.

The volte face

But suddenly this power is sought to be nullified. It is interesting to note that the Government Representative did not make this plea when the Ashok Chavan petition was heard by the Delhi High Court. On the contrary, the ASG did not support the petitioner’s plea that the 1955 decision of the Election Tribunal in Sucheta Kriplani Vs S.S. Dulat case (AIR 1955 SC758) was applicable to his case. The volte face by the government is, therefore, surprising. One is not sure whether the dramatis personae has suddenly assumed importance or the true import of the provision in Section 10A has dawned late, which has led to the Law Ministry taking up cudgels on behalf of Mr. Chavan before the Supreme Court.
Whatever the reason, it is clear that in advancing this plea and trying to whittle down the powers of the Election Commission, the government, contrary to its oft-repeated vehement concerns and commitment to curb money power and paid news in elections, is actually intent on perpetuating the same by making the Election Commission powerless to act even when the submitted accounts of election expenses are absurd in the extreme. That political parties and politicians are reluctant to initiate any electoral reform is no longer a secret. But a government working to undermine the ECI is the news now or a ‘scandal’ as The Hindu editorial called it.
The case before the Supreme Court is no longer one of Dr. Kinhalkar and others vs Ashok Chavan. It concerns every individual and institution that is uneasy about and opposed to the sway of money power in elections. In the last few years, the ECI has done a commendable job to monitor and tackle the menace of unbridled expenditure in elections. It has set up a monitoring division and monitoring arrangements down to the district level and is also closely interacting with government agencies like the Income Tax department to bring the offenders to book. With its customary policy of sharing information widely and transparently, the Election Commission has made it possible for interested civil society groups to get information from candidates’ affidavits and is providing similar access to the accounts they file by putting the abstract on the website. It has moved proactively to seek an amendment to the rule that allows 30 days to a candidate to file accounts and just 15 days thereafter to file an election petition before the courts by seeking more time for filing petitions. The ECI’s powers under Section 10 A can be invoked against all candidates, winners or losers, and if that is denied to it, only the winner’s election can be challenged in the High Court and that too only if it can be shown that he has breached the ceiling on expenditure.


If the ECI’s powers are curbed, the whole activity of regulating election expenditure will come to a standstill with none having the authority to question and discipline the wrong-doers. If the government is aware of this, has thought about it, and has yet gone ahead to seek through its affidavit to the Supreme Court a ‘plain reading’ of the provisions of Section 10 A, a euphemism for negating the law laid down by the 1999 Supreme Court judgment, it is nothing but reprehensible.
The need of the hour is for civil society activists, NGOs and other concerned citizens to get together and voice their opinion against this calculated attack on the Election Commission’s powers. They would be well advised to go before the Supreme Court expressing their opposition to the government’s stand because the distortion being attempted can be allowed to go unchallenged only at the peril of democracy, and free and fair elections.
(N. Gopalaswami is a former Chief Election Commissioner of India)

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