Tuesday, February 21, 2012

The EC needs to be statutorily regulated…..

The government has walked into the hornet’s nest by bringing up a proposal – which it now denies – to give statutory powers to the EC’s supervision of the Model Code of Conduct (MCC). To a layman, it may look like the EC’s arms are actually being strengthened since it will now be actually illegal to violate the MCC; the MCC so far was only a “moral” compact between political parties. But the opposition has reacted by calling this proof of the Congress’s desire to clip the wings of the EC. Which side is right?

Well, let’s look at the conduct of the EC in recent times.

The first big controversy was the Salman Khursheed one, on which I had written that the EC was strong enough to take whatever action it felt was necessary. The EC had taken a belligerent stand on the controversy, threatening to take action against Khursheed. The issue provided fodder to the media for several days. The opposition demanded that Khursheed be punished. There was talk of the election to Farukkhabad getting cancelled. But what happened eventually? Salman Khursheed uttered a few pleasantries; said he “respected” the EC; he had never wanted to offend the EC blah blah. But he stuck to his grounds that he had made no mistake – that the 9% minority quota was as per his party’s manifesto and hence he had not violated the MCC (the manifesto did indeed say: reservation in proportion to population. Population is 18%. So 18% of the max reservation limit of 50% is 9%. That’s the number that Khursheed mentioned, but no one understands maths these days!). If you thought Khursheed’s explanation was all rubbish, you were wrong. The EC agreed with Khursheed and merely “censured” him. Now for anyone to think that politicians are actually bothered of being censured is a bit of a stretch. Life was back to normal for Khursheed; his objective achieved. Whether his wife gains from his gimmicks or not, only time will tell. In my mind, the EC appeared arbitrary and discretionary. No one could understand why it let Khursheed go off so easily. Why didn’t it just cancel the elections? Why didn’t the EC ban Khursheed from campaigning for three years like it did recently in another case in UP? Of course, the EC is answerable to none.

Again, in the repeat case of Beni Prasad Verma, he too got away by repeating (almost) the exact words that Khursheed had used. Again, the EC has so far merely served him a notice. That’s it. So many days have gone by now, it’s unlikely the EC will take any firm action against Verma. Again, the EC has come out as being undecisive and weak. But more importantly, it’s come out as being whimsical, unpredictable and almost unlawful in condoning a chosen few. Its conduct has been as suspect as a babu’s when it comes to administering his discretionary powers.

The opposition’s main complaint in both the Khursheed and Verma cases was that the Congress was using religion to polarize the voters. This was supposed to be Congress’s grand plan – garner all the Muslim votes and upset the plans of all the other parties. Even assuming this was possible (the results will show that this isn’t), is the BJP really in any position to accuse the Congress on this? What’s its own politics in UP based on? Development? Anyone who believes that has to be kidding. The BJP’s entire UP politics (indeed its national politics) continues to be based on one single agenda – the Ram Mandir. If it’s not so explicit, then it’s about an amorphous term “Hindutva”. In UP in particular, it’s all about getting votes by promising the Ram Mandir. It’s pulling at the heartstrings of avowed Hindus to get them to vote for it. If Khursheed’s and Verma’s campaigning was wrong because they were exploiting religion, then how was BJP’s campaigning right? How come the EC hasn’t issued any notice to BJP leaders? Again, a lot of discretionary decision making.

What about Samajwadi Party’s campaigning? What’s the SP’s main poll plank? Again, it’s appealing to the Muslims. Remember what Mulayam is jokingly called? Maulana Mulayam Singh Yadav. And what has the Maulana promised in his speeches? 18% reservation to the Muslims! He’s got to be two steps ahead of the Congress when it comes to political grandstanding! But wait…..did the EC “censure” Mulayam? Did it even serve him notice? Did it cancel any elections where he made such speeches? None of the above. Again, the point I am making is that the EC’s conduct has been discretionary and unexplicable.

Let’s also ask what is really in the hands of the EC to do if some politician breaks the MCC? On the face of it, the EC can do “anything” it wants to do. But in reality, it does nothing in most of the cases. Maybe it’s the lethargy of having to organize elections all over again that makes it so casual. Whatever the reason, in reality, the EC doesn’t do much. Is this alright? Should the EC really not do anything if there has been poll related violation of law? Should the EC itself be allowed to get away with such conduct? This is a case where the EC (headed by a Muslim) has attacked the Congress (which is trying to please the Muslims) – so no one has accused it of playing the religious card itself. Just imagine if the EC had attacked the BJP? The BJP would have communalized the entire issue. Remember James Michael Lyngdoh in an earlier era in Gujarat?

That’s why it’s a good idea to make the MCC a legal statute. Every party would then be duty bound to follow it. It’s would no longer be merely moral; but legal. If there was a violation, the implications would be clearly laid out. The action would necessarily have to follow. There would be no discretion. Or even if discretion was there, it would be as per the law laid out and transparent.

What’s the real problem with all this? Soli Sorabjee brought this out clearly on TV last night. The problem is that the courts in India take forever to adjudicate on a case. Hence violaters of the MCC would get away without any restrictions. If that’s the case, then the Judiciary must rise to the occasion and create special courts which come up only during election time. Just like school staff, cops, and every other bureaucrat get assigned to “election duty”, so should the judges be. There can be courts set up which adjudicate within 2-3 days; in any case, the EC doesn’t decide faster. In fact, the EC doesn’t adjudicate on most cases at all. In Punjab alone this year, the EC received some 3,230 complainst related to polling. I haven’t heard of how many of those got cleared by the EC. As lay public, we never question the EC. We simply assume that the EC is “above board” and must have taken the appropriate decisions. Because we dislike politicians so much, we tend to like every other body, especially a Constitutional body like the EC. Admittedly, the EC has otherwise done good work in India. But the fact is that the EC also needs some regulation. Maybe the Executive should not regulate it; but the Judiciary? That looks fair.

The EC would like to have statutory powers, but it wants the exercise of those powers to stay with itself. How convenient. This is the basic problem I had with the structure of the Lokpal proposed by Anna’s team also. The EC wants to be the investigator, prosecutor and judge all rolled into one; accountable to none. Now we see the dangers of this. In all cases mentioned earlier – the EC did nothing. And no one can point a finger at the EC. Do people even realize that the EC has actually been very kind to the Congress?

Just because a body is a Constitutional body doesn’t mean that it is above the Constitution; or the law of the land. The laws can be made only by Parliament and even Constitutional bodies have to follow the laws. All that a constitutional status does is that it makes it difficult to do away with a body by a mere simple majority (which any ruling coalition has). It makes it necessary to garner a 2/3rds support which ensures that no one plays with a Constitutional body. But it means nothing else.

Look at the conduct of another Constitutional body – the CAG. Let me leave aside its estimate of “presumptive” loss on 2G spectrum. That is for the courts to decide (my views are that there was no loss; it was a government policy to give spectrum free and was followed by all governments till now. There was corruption in exercise of discretion by Raja, but no corruption in the policy itself). Let’s take the CAG’s pronouncements in the Antrix case. The CAG said it was a loss of Rs 2 lac crores. It’s now been proven that the CAG didn’t know it’s a@& from its elbow. What happened then? Did it apologize after messing up the issue? No way. It’s a constitutional authority after all!

The real truth is that we need laws even for Constitutional bodies. The fact that the judiciary takes too long to decide on petitions cannot be the reason to bundle the powers to adjudicate and give it to a Constitutional body. The Constitutional body will only be too happy to grab all the powers. But then it remains accountable to no one. Just like the Lokpal would have been. Just like the CAG is (well it is accountable to the PAC…..but it prefers to sensationalize first by going to media). Just like the EC has been of late…..

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