Lalu vs Election Commission

As B.B. Tandon prepares to assume office as the Chief Election Commissioner, a controversy erupts over the repoll ordered in the Chapra Lok Sabha constituency in Bihar last year.

V. VENKATESAN in New Delhi

WHEN the United Progressive Alliance (UPA) government appointed Election Commissioner Brij Bihari Tandon as the next Chief Election Commissioner (CEC) from May 16, the decision seemed to be a routine one, in line with the convention of the seniormost Election Commissioner being elevated to the post on the superannuation of the outgoing CEC. Thus it came as a bolt from the blue when Railway Minister Lalu Prasad demanded the resignation of both Tandon and the other Election Commissioner, N. Gopalaswami, on the basis of a recent letter written by a former Special Observer of the Election Commission (E.C.) to Union Minister for Law and Justice H.R. Bhardwaj.

The former Special Observer of the E.C. for Bihar during the 2004 general elections, L.V. Saptharishi (now Director-General of the Council for Advancement of People's Action and Rural Technology - or CAPART), alleged in his letter dated May 6 that both Tandon and Gopalaswami deferred to the then Union Home Minister, L.K. Advani, and the Bharatiya Janata Party candidate from the Chapra Lok Sabha constituency, Rajiv Pratap Rudy, and countermanded the Lok Sabha election in Chapra, held on April 26, 2004, although "nothing extraordinary or abnormal" had happened in the constituency on that day to merit repolling in the entire constituency. Lalu Prasad was the Rashtriya Janata Dal's (RJD) candidate to this seat, and got elected in the repoll.

Saptharishi alleged that both Tandon and Gopalaswami mentioned - during the presentation of his report before the Commission after the polling was over - that they would like to teach Lalu Prasad and all Yadavs a lesson. Specifically, he accused Tandon of making a casteist remark suggesting that no Yadav could be trusted, irrespective of whether he was an officer from Bihar or Uttar Pradesh. Tandon allegedly made this remark when the discussion with Saptharishi focussed on the role of the then Superintendent of Police of Chapra district, a Yadav. Saptharishi attributed to Gopalaswami the observation that "something dramatic has to be done to fix Lalu Prasad and teach him a lesson". On why he disclosed this a year after the incident, Saptharishi told Frontline that he was waiting for Tandon to become the CEC.

The E.C. responded swiftly to the allegations by issuing a press note. The outgoing CEC, T.S. Krishnamurthy, denied that there were differences between him and the other two Commissioners on the Chapra repoll issue or that his two colleagues made the casteist remarks attributed to them by Saptharishi. In its response, the E.C. considered it beneath its dignity to respond to the scurrilous and baseless allegations against the two Election Commissioners.

"The free, fair and impartial manner in which the elections are being conducted in the country, including Bihar, has been seen and widely applauded by the whole country. Insofar as Chapra election is concerned, the full Commission passed a unanimous quasi-judicial order on May 10, 2004, setting out in detail the reasons for its order, which speaks for itself. Immediately after this order was passed by the full Commission, it was made public through print and electronic media and put on the Commission's web site for public scrutiny and was open for judicial review.

The Commission strongly deprecates the personal attacks made on the two Election Commissioners and Shri K.J. Rao, Adviser, Election Commission of India, and considers such personal attacks highly reprehensible," the press note said.

The three Election Commissioners also met President A.P.J. Abdul Kalam to explain their case and also to reiterate the point that they are collectively accountable for their perceived omissions and commissions.

The casteist remarks allegedly made by the Election Commissioners - notwithstanding the denials by them and the CEC - have raised doubts about the E.C.'s decision on the Chapra repoll. Was it a biased decision as alleged by Saptharishi or one reached after an objective analysis of the facts collected by the E.C. after the poll? The answer to this has a bearing on the E.C.'s image as an impartial umpire responsible for the conduct of free and fair polls in the country.

In his report, Saptharishi pointed out that the cardinal, time-tested method followed by the E.C. for ordering a repoll takes into account the totality of the report of the Returning Officer, the Chief Election Officer, the reports of the Observers, and other genuine complaints received from other quarters. He suggested repolling only in 89 polling stations where there was evidence of the polling process having been affected for one reason or the other, as revealed from the reports of the Presiding Officers' diaries, and those of the Observers.

However, Saptharishi was inclined to recommend repolling in more constituencies if it was necessary to give full credence to the complaints received from different quarters, he said. "It may at best be necessary to conduct repoll in 172 polling stations; there may still be some scope for increasing the number of stations for repoll here and there based on the complaints of different candidates. However, by no means there is any scope for countermanding of the poll in all the segments of this PC (parliamentary constituency) as demanded by Rudy," he wrote in the report.

The E.C. was dissatisfied with his report, as it was contrary to what was shown on television and substantiated by some of its Observers appointed and assigned to the constituency. There were complaints of booth-capturing, violence, complicity and partisan conduct of election-related officers and police authorities, and ineffective utilisation of Central paramilitary forces (CPMF) in the constituency.

The E.C. therefore, deputed a special team of two officers from the Commission's own Secretariat to make an on-the-spot inquiry into the complaints. The team, comprising Anand Kumar, Principal Secretary-cum-Director, and K.J. Rao, Adviser, visited Chapra on May 2 and 3, 2004.

Based on the team's report, the E.C. concluded that there were no proper and adequate security arrangements for maintaining a peaceful atmosphere in the constituency that was conducive to the holding of a free and fair poll. The CPMFs were not properly deployed as per the Commission's directions, and the Observers found many of their personnel sleeping in police lines awaiting deployment until mid-day on the day of polling. In many other cases, they were idling away as no arrangements were in place to transport them to their places of deployment, it was found.

The deployment plan drawn up by the police authorities showed no provision for the posting of Home Guards at several polling stations. This corroborated the complaints to the E.C. that it was a free-for-all at the polling stations and that miscreants had unobstructed access to them and could capture them.

The E.C. came to know from the team's report that even the polling personnel connived with one party or the other to rig the poll. "They were apparently so over-awed that they did not take courage to report true facts in their reports and diaries and became a party to the silent rigging,", the E.C. said in its order of May 10, 2004. A clear manifestation of their complicity and connivance in the booth-capturing and vitiation of poll is the manner in which they manipulated the voters' registers in Form 17A so as to cover their misconduct at the polling stations. The E.C. pointed out in its order that these personnel obviously thought that the registers would not be opened or inspected by anyone after the close of poll and that their misdeeds would remain undetected.

None can deny that these are serious findings and the E.C. could not have ignored them while taking a decision on repoll; these findings also probably strengthen the E.C's contention that Saptharishi's allegations of bias and arbitrariness in its Chapra repoll decision were unfounded. The Centre has issued a show-cause notice to Saptharishi on why disciplinary action should not be taken against him for violating Civil Service Conduct Rules by speaking against constitutional functionaries.

Prime Minister Manmohan Singh and Law Minister Bhardwaj have both rejected Lalu Prasad's demand and underlined the need to respect constitutional bodies such as the E.C. The BJP, too, has come to the E.C.'s defence on the same ground, although the party and its Chief Minister in Gujarat, Narendra Modi, were guilty of denigrating the office of the CEC when J.M. Lyngdoh held the post. Lyngdoh had refused to hold early Assembly elections in Gujarat to suit the BJP's communal agenda.

Tandon's term as CEC will last until June 2006, and Gopalaswami will have a longer term as the CEC after him.