Case for reform

The CPI(M) sets the pace for a debate on the reform of the Election Commission.

V. VENKATESAN in New Delhi

THE Communist Party of India (Marxist) has released a detailed critique of the Election Commission of India in the background of its supervision and conduct of the Assembly elections in West Bengal in April-May. The CPI(M)'s Note calls upon the polity to examine the constitutional and statutory standpoints to ensure the accountability of the E.C. and suggest criteria by which this can be benchmarked. It warns that without defining this accountability properly, the E.C. can show a proneness to non-transparent, subjective and arbitrary behaviour, which could undermine the institution's non-partisan and independent character.

The CPI(M) has also suggested specific reforms: the appointment of members of the E.C. by the President on the advice of a committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India or any one of his colleagues from the Supreme Court; a bar on Election Commissioners enjoying any office after retirement, whether under the government or as a Governor or a Member of Parliament, to eliminate any possible conflict of interest.

The Note, to which the E.C. has chosen not to respond, raises important issues concerning its role in elections. It alleges that during the West Bengal Assembly elections approximately 22 lakh names were struck off the electoral rolls. Of these, about nine lakh were struck off after the publication of the final rolls. In a large number of cases, the Note claims, the deletions were carried out without following the legal procedure of sending notices to the individuals. A large number of genuine Indian citizens - ordinary people - were disenfranchised on the allegation that they held Bangladeshi citizenship, though they had documentary evidence to the contrary, the Note said.

As interpreted by the Supreme Court, mere absence from one's native place for some time does not deprive a person of the qualification of ordinary residence there if he possesses the ability and intention to return. But a person who has gone to some other place, within the country or outside, for business or employment for a long period should be treated as having moved out of his native place and, therefore, not ordinarily resident there, which is a mandatory qualification for a voter.

As the law does not define who is an `ordinarily resident' voter, there is a subjective element in deciding cases. The CPI(M) claims that it brought to the E.C.'s notice specific instances of such deletion of ordinarily resident voters from the voters' list, but the E.C. pleaded insufficient time to restore the voting right to genuine voters. This raises the question whether the E.C. followed due process in the deletion of names.

There can be no dispute with the CPI(M)'s proposal to introduce a unique identity number for each voter. This number, the Note says, shall be indicated on the electoral roll, but no one can be an elector on more than one electoral roll simultaneously. The CPI(M) claims that it will then be possible to transfer the name from one roll to another while maintaining the integrity of all the rolls together. Until such reform is carried out, should the country continue with the aberrations with regard to who is an `ordinarily resident' voter as required by the law?

The CPI(M) interprets the E.C.'s decision to avoid completely the State police force in securing polling booths as an expression of no-confidence in the neutrality of the police force. Frontline has learnt that the E.C. took this decision mainly to ensure a complaint-free election. The usual practice is to have some polling stations under the exclusive control of Central paramilitary forces (CPMF) and some under the exclusive control of the State police. It is not feasible to have a mixed force at a single polling station.

The CPI(M)'s Note asks: The E.C. held elections in West Bengal over five days, whereas it held elections in Kerala in three days and on a single day in Tamil Nadu. Why?

Frontline's inquiries found that the E.C. held a meeting of senior officials of States going to the polls, where force requirement was discussed. A working paper presented at the meeting by West Bengal indicated that elections conducted in three phases would require about 2,600 companies of CPMF, and in four phases 2,700 companies. (Each company has 100 persons.)

The E.C. decided on the poll schedule on the basis of the inputs it received at the meeting and its own assessment. Tamil Nadu, with a one-day poll, required only about 195 companies of CPMF. The E.C. apprehended that if the polling was held in phases mischief-makers would move from one polling area to another. In Kerala, a one-day poll would have meant 200 companies of CPMF, which was considered not feasible. The E.C. managed it in three days with 25 companies. It opted for three phases because, according to it, all parties except the Left complained of an atmosphere of violence and intimidation.

These figures suggest that West Bengal's requirement of CPMF was far higher than that of the other States and, therefore, justified the holding of elections in five phases.

However, CPI(M) general secretary Prakash Karat told Frontline that West Bengal's requirement of CPMF was higher precisely because the E.C. had by that time decided to bring all polling stations in the State under CPMF. Had the E.C. refused to accept blindly the Opposition's demand for 100 per cent CPMF coverage, and sought the services of the State police force to secure non-sensitive polling stations, polling could have been held in two phases, as had been done in the past. By holding the elections in five phases, the E.C. appears to have denied a level playing field of the whole electorate, who might have been exposed, in theory at least, to different issues in a long-drawn-out polling process. Besides, it might have lost an opportunity to avoid unnecessary expenditure.

The CPI(M) says in its Note that the E.C. unjustly invoked the West Bengal Prevention of Defacement of Property Act, 1976. Although the Act was limited to Kolkata and Howrah, the E.C. forced the State government to extend it to the whole State to ensure a blanket ban. In Tamil Nadu, the CPI(M) said, the Tamil Nadu Open Places Disfigurement Act, 1959, was limited to municipal areas.

In its defence, the E.C. makes a subtle distinction between its advisory and directory functions. In asking the State government to enforce the Act in the entire State, the E.C. was only exercising its advisory role. The State government extended the applicability of the Act to the entire State. While advising the State government the E.C. was guided by the model code of conduct and the objective of ensuring that the campaign was free of tension and violence, which usually resulted from `wall-capturing'.

The West Bengal Act allowed the executive to extend it to other areas and the State government had done so on two earlier occasions on the E.C.'s `advice' even though the objective of the Act was to control the erection of commercial hoardings and not to restrict poll campaigning. The Tamil Nadu Act cannot be extended to non-municipal areas because the executive does not have the power to do so. The Act has to be amended to give the executive such power but the E.C. cannot advise the legislature in this regard.

While the E.C. may appear to have its own compulsions in advising the State government to extend the Act to the rest of the State, it seems to have ignored the implications of such a move for the election campaign, which was deprived of one of its cheapest means - wall-writing with the consent of the wall owner. The State government has vowed to repeal the Act, says Prakash Karat.

The CPI(M) contends in its Note that the absence of an Electoral Photo Identity Card (EPIC) for reasons beyond the control of the voter cannot be a plea for disenfranchising him/her, especially when he/she possesses some identity card issued by the government/appropriate authority to establish his/her bona fides. Rigid formalism is subordinating the basic democratic objective of the election process, it laments.

The E.C., however, has a different reason for its decision to make the EPIC mandatory. If voters who have been issued EPIC cards were still allowed to use other documents to establish their identity for voting, it would have led to complaints that impersonators used other documents for voting at the behest of genuine voters with EPICs.

The E.C., therefore, invoked Rules 49(H) (3) and 49(K)(2) of the Conduct of Elections Rules, 1961, making it mandatory for voters to produce their EPICs at the time of voting. The E.C. conveyed this in advance to all voters who had been issued cards. Opportunity was given to those who had lost the EPIC to obtain a duplicate.

As a result of these steps, the E.C. claims, the EPIC coverage improved and the seriousness and importance of the EPIC were felt. The scope for misuse of alternative documents for bogus voting was curtailed, according to the E.C. Voters not having the EPIC or any of the alternative documents were issued non-EPIC voter identity certificates. This helped residual voters to exercise their franchise, the E.C. claims.

The CPI(M) Note alleges that E.C. observers assumed executive powers by riding roughshod over the State administration. They entertained false complaints from opponents and ordered raids on CPI(M) party offices and houses of party supporters, it alleges. The selection of observers is not transparent and officers against whom investigations by the Central Bureau of Investigation were pending were appointed as observers, the Note alleges.

According to the E.C., its observers have no executive powers, and as the eyes and ears of the Commission their reports help it to ensure free and fair elections. However, the CPI(M) Note says there is need for clarity on their powers and duties. The E.C. is reluctant to put the observers' reports on its web site under the specious plea that they would stop writing candid reports. In the age of Right to Information, there is indeed a strong case for transparency over the role of observers.

In the Assembly elections in 2001, reels of fax paper were continuously exhausted in the Commission's office in New Delhi, like Draupaudi's sari in the Mahabharata, as one observer put it.

Chief Election Commissioner M.S. Gill was the target of a vitriolic attack from Mamata Banerjee, the leader of the Trinamul Congress who accused him of colluding with the ruling CPI(M) to rig the results.

This time, the E.C.'s fax machine in Nirvachan Sadan was relatively silent during the elections. But this silence was an eloquent testimony to the extraordinary measures the E.C. undertook to ensure a complaint-free election. Sadly, it left the Left Front fuming about what it believed were unjustified restraints over the dance of democracy. Put in this context, the CPI(M)'s demand for a constitutional mechanism to resolve effectively the differences between the E.C. and governments could make sense to many.