The Election Commission might have settled the claims and counter claims of Samajwadi factions without controversies, but now AAP supremo Arvind Kejriwal is training his guns on EC. Quoting a another tweet that claimed money was being distributed in Punjab to win votes, Kejriwal tweeted: "EC fails to stop this. EC prevents me from saying: 'Take money from them n vote 4 us'. EC's message: 'vote 4 those who give u money'. The poll season has begun and EC is becoming a target, raising questions at the panel’s authority. Last week, BJP's SangeetSom kicked up a row when his campaign vehicle played a video allegedly pitting Hindus against Muslims. EC censured him, but his political opponents cry the punishment was just a rap on his knuckles.
News18's Debayan Roy approached two former Chief Election Commissioners (CEC) of India TS Krishnamurthy (2004-2005) and N Gopalaswami (2006-2009) with the same set of questionnaires on is the panel failing to stamp its authority. Here is what they said:
EC has censured Kejriwal for his statement on poll corruption as well as BJP MP Sakshi Maharaj’s allegedly communal speech. Two provocations of two different kinds, with varied ramifications, but the punishment is same. How does being censured regardless of its ramifications help?
N. Gopalaswami: You are not looking at the other action where penal provisions are also invoked. In the case of Sakshi Maharaj, sections from the Indian Penal Code and The Representation of Peoples Act will have to be invoked. But any plenary action has to be initiated by the court of law. Censure is definitely not a substitute to the penalty imposed by the penal sections of substantive Indian laws. But if members of a political party are censured a number of times then the concerned political party is served a notice stating that the party is not abiding by the rules and regulations agreed upon while registering the party and suitable action can be taken against them. Taking an action against the party is within the ambit of EC but reprimanding them according to penal laws is up to the courts. For the EC, when a leader is censured, it’s not him that we censure but the party which is warned.
T.S. Krishnamurthy: Election Commission of India generally censures offenders in the case of first offence in the hope that the censured person would behave better. Normally censures are given after giving an opportunity to the party concerned so that the view of the person is obtained. So long as the offence is a minor, Censure has an impact. If the offence is serious then censures may not be adequate. That would depend upon the circumstances of the case.
Do you think the censure is justified or are we reading too much into a political speech?
Gopalaswami: No, no, no. The very fact that he supported the idea of being bribed or taking bribe shows that he supports the concept and I think it was a correct measure to issue him a notice and then censure him. If he would have said that "Do not accept bribe from anyone and vote for me" then there would have been no offence.
Krishnamurthy: In my opinion if any person invokes religion to influence voters such persons should be after enquiry disqualified from campaigning in election for one or two years apart from filing a police complaint under IPC & Representation of People's Act. Perhaps the Model Code of Conduct (MCC) needs to be amended.
The Law Ministry has rejected EC’s request to insert a new section, 58B, to grant it permanent legal powers to take action if voters of a constituency are bribed by political parties. Do you think there is a need for such an amendment?
Gopalaswami: It has to be understood that penal powers cannot be given to the Election Commission. You cannot substitute EC for the courts and strike at the basic separation of powers. Penal powers have been reserved for the judiciary. Having said this, EC has its own set of powers too, like if the EC comes to know that a corrupt practice like bribery is taking place then the elections can be cancelled in that place as was the case in Tamil Nadu. But disqualifying the political party leaders is again under the jurisdiction of the courts. Courts may find certain leaders guilty of violating provisions of the IPC, RP Act, which might result in the disqualification of the guilty leader.
Krishnamurthy: Well I think ECI needs certain powers to disqualify voters/candidates who violate the Model Code of conduct. In fact some aspects of Model Code of Conduct may have to be given legal shape. It is only because of this that such ambiguities are arising.
NGOs that monitor elections say that EC limit on expenditure for polling candidates is a joke. For eg: Limit for electoral spending by a MLA in UP is 16 lakhs but NGOs claim that a winning candidate ends up spending several crores.
Gopalaswami: This is an eternal dilemma of the EC. The panel only recommends to increase or decrease the ceiling of expenditure by the political parties but the parliament can easily go ahead and disregard such recommendations and remove any sort of ceiling from election expenditure. We are all pretending to be socialists. Every politician would want to be called as a socialist thinker. There is a saying in Tamil. ‘You pretend that you are beating and I will pretend that I am crying.’ In this case too, EC pretends that it has proposed a ceiling to election expenditure and Parliament pretends to accept such a recommendation, both knowing well that such ceilings will never be adhered to. For a change, EC should now puncture the socialist concerns of all sectors and accept that this menace cannot be controlled. How do you think EC will able to monitor the issue of bribery? If there is one crook and nine policemen, then the crook can be nabbed, but if there are nine crooks and one policeman then it is impossible to get hold of him. Bribes are usually paid in different ways like under the nose or in form of coupons where people can use it to purchase things from a shop.
You cannot ask EC to do something which they cannot manage and then blame the institution. I was the CEC during the 2007 UP elections. We successfully controlled the menace of booth capturing and bogus voting. It was only possible because we could track the officials who manage booths as they are on a contract basis, plus the guns which are used during booth capturing can be differentiated as a private gun or a public gun thereby helping us to understand who the miscreants were. But such a thing is not possible for bribery because if EC goes and says that vote according to conscience and reject the bribe of Rs2,000, then the leader will increase the amount to Rs 4,000 thereby making the electorate fall prey to it. In UP alone, I had to deploy 4, 50,000 additional paramilitary force during the seven phase polls and it is indeed a matter of great shame that a country which calls itself democratic have elections at gun point, does not matter whether it is a private gun or a public gun. In US, UK, no where do you find armed personnel near a polling booth? Hence it is useless to blame the EC. No one really bribes out of philanthropy. They know that after investing Rs20 they will win and they can again mint back the money.
Krishnamurthy: State funding of elections and banning donations directly to political parties may be one of the options.I feel there should be a National Election Fund to which alone corporates and individuals who are not members of the party be allowed to donate with 100% tax rebate. ECI has been sending suggestions for electoral reforms periodically. This needs to be addressed urgently.
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