Cover Story: EC’s Brush With Controversy

Election Commission of India shouldn’t continue basking in its glory and do nothing to ward off attacks questioning its credibility. It must come clear on all accusations against it

By Anil Anand

The phrase “Caesar’s wife must be above suspicion” in the literal sense means that a famous or prominent person or organization must avoid attracting negative attention or scrutiny.  Adherence to this phrase is directly related to a strong reflection of impartial credentials. This phrase is often hurled at each other by the political rivals to score a brownie point hardly realizing the seriousness of the feeling behind this saying.

The issue becomes much more serious if while quoting this phrase the direct reference is to Election Commission of India whose impartial credentials and capacity to hold free and fair elections in the largest democracy of the world are universally acknowledged. Controversies and ECI are not unknown to each other and to some extent this situation is unavoidable as after all the “poll-referee” deals with the political parties and leaders who could go to any extent to justify their victory and lambast anyone including the poll panel for defeat.

But the situation takes an awkward turn when the ECI’s decision making comes under public scrutiny, not that it should not be open to scrutiny, and more so when viewed or assessed in the light of set precedents and practices. This is not to say that the panel has no power to take decisions in its wisdom. Certainly the Chief Election Commission and the two Election Commissioner’s are well within their powers to do so but sometimes, as the situations warrant, they should also act with greater prudence particularly when it involves issues which become personal cum official for them. At times holding on to conventions and traditions could act as a shield to deflect suspicions than moving away from the same and be doubted by the stakeholders.

The ECI’s decision to segregate the polling schedules for Gujarat and Himachal Pradesh Assembly elections, going against the conventions, has created an avoidable controversy and dragged the CEC AK Joti into the realm of Caesar’s wife syndrome. Immediately, the Election Commission’s decision for postponing to a later date announcing schedule for Gujarat elections raised heckles of the BJP’s, ruling both at the Centre and in the state, political rivals particularly the strongest challenger Congress.

The backdrop of Joti being a 1975-batch Gujarat cadre IAS officer who was also the state chief secretary before moving to Delhi to take up the high constitutional office in Nirvachan Sadan, led the rivals to allege favoritism in delaying the poll dates to give more time to the ruling party to announce to shell out more poll-eve sops till the last moment. Joti has vehemently denied and justified the panel’s decision of delayed poll dates on the plea that the state government needed some more time to complete flood relief measures in some districts.

 So, it resulted in Caesar and the wife both finding them covered by the same cloud of suspicion. Why should not the Caesar more than his wife be above suspicion? This reversal of the proverbial saying has become a serious debating point as regards the role of Joti after particularly after reports emerged about his holding on to an official accommodation, perceived to be a favour, in Ahmadabad and at the same time enjoying a similar facility while holding  a high-Constitutional post in Delhi. It was alleged that the retention of house came as a favour to be him by the state government and that the postponement of poll schedule seen as a repay back time.  

It is a laid norm and widely known that a person appointed to a Constitutional position that requires utmost independence of view should not do anything that would require her to seek favours from any government be it Central or the state. This is where both the Caesar (Joti) and through him the wife Election Commission are finding themselves enveloped in a controversy.

The basis of the housing controversy lies in the court documents concerning a case filed by a senior police officer before the Central Administrative Tribunal’s (CAT) Guwahati Bench. The police officer had furnished documents showing that Joti had not vacated an official bungalow allotted to him by Gujarat government in Ahmadabad while he was serving there till sometime in 2016 which was almost a year after he had taken charge of a Constitutional post in Delhi that needed complete independence from political parties or Centre and the state governments.

So the controversy generated  by EC’s October 12, 2017 decision to break away from the practice and defer announcement of Gujarat Assembly election dates with a view to delay the imposition of Model Code of Conduct, led to the political parties using this ammunition ( CAT case documents) against Joti. The more worrisome development has been that not only the parties but at least half a dozen former Chief Election Commissioners have publically criticized this deferment which they felt has brought bad name to the poll panel.

Joti had held important positions in Gujarat government that included secretary industries, revenue and water supply, principle secretary (finance). Later he also served as chairman Kandla Port Trust and retired as Gujarat Chief Secretary on 31 January, 2013. There after he was appointed vigilance commissioner in the state vigilance commission. He entered the Nirvachan Sadan, Delhi, on being appointed as an Election Commissioner on May 13, 2015 by the Narendra Modi Government and became CEC on July 6, 2017.

The case relates to IPS officer Satish Chandra Verma. He is contesting a Gujarat government order directing him to vacate his government accommodation immediately after his transfer from Gujarat to Meghalaya.  Significantly, Verma was part of the SIT that probed the Ishrat Jahan fake encounter that had eventually led to many Gujarat police officers being charge-sheeted. Quoting Joti’s case and his own immediate eviction, he said that his SIT background had prompted the state government to adopt a vindictive attitude towards him.

In this backdrop and with Joti holding on to the Gujarat government allotted accommodation following the state acceding to  his request for a special  consideration to retain the same, doubts have been raised about his ability to take an impartial view. The direct fallout has been the fingers being raised at the institution of Election Commission known for its independence and capacity to create level playing field for elections.

Furthermore, a peculiar situation has been created by Joti still not coming out with a credible answer to the favoritism charge. Verma’s contention before the CAT that the CEC has been a beneficiary of the Gujarat’s favoritism on the housing allotment compared to his own eviction has raised serious questions of clash of interest on Joti’s part. The issues related to professional propriety and conflict of interest raising a specter of partisan approach by the Election Commission itself has put the poll body in a tight spot.

Will such a situation erode the Election Commission’s stature as a fiercely independent poll conducting body hailed world-over and which has helped many countries in the art of conducting free and fair elections? As such directly it will have no effect whatsoever as decision making at the Nirvachan Sadan apart where such aberrations take place occasionally, the entire poll conducting process is a multi-tier exercise involving lakhs of  government personnel of different categories.

Yet another question arises whether the decision to postpone Gujarat poll schedule under the circumstances with Joti’s background as an officer of the Gujarat cadre having held many important posts in the state, could have a psychological impact on the state officers on poll duty to act in a particular way?  The episode has definitely created a buzz and Joti’s role continues to be under the scanner but it would be too much to think in terms of greater impact of poll postponement decision on the decision making and impartial attitude of the officers overseeing elections in the state. 

The ECI has over the years, particularly after heady days of being presided over by the indomitable TN Seshan, has acquired a worldwide reputation of being an epitome of public trust. This fact is also borne out by study conducted under a comprehensive 3-year long State of Democracy in South Asia project. The study had found that the ECI was second only to the army among the state institutions when measured on the barometer of public trust. The trust started becoming stronger after the then CEC RVS Peri Sastri in 1987 reversed the decision and instead of the Government directing the top poll body on when to hold the elections, it started becoming privilege of the ECI.

The trust and authority of the ECI was further established when Seshan became the CEC. There is no denying the fact that strong decision making by him which at times was also seen as bordering idiosyncrasies, as at least two of his fellow Election Commissioners narrated to this writer later, strengthened this public trust factor. Of course in the process the political class was totally rattled as none of their tantrums to have their way with the ECI worked. So it was a clear fight between creating public trust over anything else and the trust factor reigned supreme

Final victor in terms of impartial mechanism and public trust was the ECI. The latest episode has led to erosion of, at least in public debate, public trust in the poll body to some extent. Why create a situation where even an iota of doubt is raised about impartiality of the Election Commission? This is the question under current debate.

It is a fact that Joti or the ECI as a whole have not been able to clear the air on allegations against the CEC having taken favour from Gujarat government.  The unceremonious manner in which dates of Himachal and Gujarat poll dates have been separated has resulted in public discourse about the ECI taking a different direction at least for the time being.

Even if one starts counting from the Peri Sastry days, however the ECI truly found its feet during the subsequent Seshan era, one can say that three decades is not a long period in the life of such a Constitutional body tasked with keeping the spirit of democracy, holding of free and fair elections, pure and alive. The ECI is still growing and a work in progress.

This is not the first time that it turned wobbly. It has stumbled many times in the past as well but the silver-lining is that every time faced with such situations it has emerged stronger, and not letting the public trust down beyond a limit.

The Seshan era, though the time of ECI’s rejuvenation, witnessed many instances that generated bad news out of Nirvachan Sadan. It was mostly due to his strong arm actions and spats with his two fellow Election Commissioners. But these could mostly be considered as rebirth pangs. But one factor that went in his favour was that he was seen as enhancing the ECI’s independence to the chagrin of political parties.

Yet another instance of ECI being in the headlines for wrong reasons was the 2009 showdown between then CEC N Gopalasami and EC Navin Chawla. The situation took such an ugly turn that Gopalaswami recommended his removal citing reasons of partisanship that, according to him, had damaged the institution’s credibility.

Subsequently, elevation of Chawla as CEC also got mired in serious crisis of credibility. His friendly relations with Congress president Sonia Gandhi and her family, was used as a tool by the then main opposition party the BJP to berate Chawla and through him hit at the Congress-led UPA Government. It is another matter that ultimately Chawla retired as CEC. Though the charges against him were leveled with a political intent but the dispute did raise questions on his capacity to act in an unbiased manner.

One latest controversy and attempt to show the ECI in a bad picture related to alleged tampering and manipulation of the Electronic Voting Machines (EVMs). Ever since the device was introduced to make the polling process simple, time and paper saving, the debate has been going on whether EVMs are susceptible to tinkering or not. A number of political parties, NGOs and individuals have taken the issue to the Supreme Court. The debate is still on.

But the debate erupted as never before, after results of the five state Assemblies and Municipal Corporation of Delhi held early this year, were declared. Aam Aadmi Party (AAP) the new kid on the country’s political block which by its own calculations was expecting to do well at least in Punjab and Delhi polls, tried to exploit the EVM issue to its advantage alleging that its defeat, in Delhi particularly, was engineered through manipulating election machines at the behest of BJP ruling at the Centre.

Interestingly, AAP is not the only party to heap blame on EVMs and and indirectly targeting the ECI for their defeat at the hustings. Most of the parties, from time to time, that includes even the BJP have raked this issue. After crushing defeat in UP Assembly elections recently the entire opposition including BSP, Samajwadi Party and Congress attributed BJP’s sterling victory to manipulation of EVMs. Though they did not directly attack the ECI but the target was clear.

In fact, BJP which is at the receiving end of this debate presently being the ruling party had in the past protested against the tampering of EVMs from its highest levels. Following the party’s defeat in the 2009 Lok Sabha elections one of its senior most leaders LK Advani had voiced concerns and attributed his party’s defeat to EVMs. His feelings were carried forward by the then party president and current Union Minister Nitin Gadkari. The sum total of all political parties protesting EVMs used by the ECI is that these are unsafe and untrustworthy for conducting free and fair elections.

ECI even organized a hackthon show. It was meant to invite the political parties to Nirvachan Sadan, give them the EVMs so that they could exhibit their talent to either hack or manipulate the device to a particular party or candidate’s benefit. None including the AAP could do that. Some of them did not turn up for the show while others like AAP pre-empted by using the Delhi Assembly stage for a live hacking of self-designed EVM by one of their MLAs which fell flat on their face.

 The EVM hacking/manipulation debate is still on and not going to die down soon. This is one area where the ECI should remain prepared to face attempted embarrassment by political groups and individuals in future also.

The ECI has by and large functioned effectively as a deterrent in the otherwise manipulative political system. It has handled tricky situations in electoral disputes resulting due to political rivalries aimed at unseating each other. But in the ultimate scenario mostly the political parties even when not having favourable circumstances prefer to go along with the ECI decisions for fear of antagonizing it and end up creating an inhospitable situation for future. Undermining the authority of ECI is no easy option is the lesson for these parties and that is the panel’s achievement.

The ECI cannot remain in the comfort zone by forwarding the argument that the EVMs are beyond hacking, tampering and manipulation. They should be more convincing to prove that safety and security arrangements to prevent EVMs from falling into wrong hands are too strong rather than harping that it cannot be tampered with. The mother board of the machine can only be changed, as alleged by those objecting to EVMs use, once the gadget is seized by the vested interests.

The poll panel should take this stand if it was to end the debate on this front. The counter argument that there is nothing which cannot be manipulated gives them a psychological edge and power to persist with their anti-EVM campaign. Every time they do so, ECI will be finds itself in a controversy.

ECI has however held its ground and refuses to buckle to these arm twisting tactics of some political parties. It must also make it clear that going for much safer and technologically upgraded gadgets is the way out. Getting back to ballot papers is not more of an option for reasons of saving time and environmental friendliness. 

And to end, the credibility of the ECI is central to ensuring free and fair electoral process and at the same time remaining on top of the table in terms of public trust. It is because of the public trust that all allegations of EVM hacking or tampering raised by the political parties have not cut much ice with the people.

That does not mean that ECI should continue basking in this glory and do nothing to ward off attacks questioning its credibility. The two ways to counter this are through exposing the false allegations through convincing means and secondly come clear on accusations such as the one being faced by CEC Joti.