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We need a CEC, not a CEO
February 13, 2003
James Michael Lyngdoh has been at it again: acidic and allergic to BJP's Hindutva. He would be entirely at liberty to wear that antipathy on his sleeves but for the fact, alas, that he is the country's Chief Election Commissioner who must keep his personal ideology to himself instead of advertising it as he seems to revel in doing. But even the black eye the Gujarat voter gave him last year hasn't compelled him to turn a new leaf for the New Year. He remains opinionated and overbearing.
Thus, on January 8, a PTI dispatch reported him making a statement when in Shimla to make a personal assessment as to whether the political environment was conducive to holding the scheduled assembly election in Himachal Pradesh.
That day he first described HP as an orderly state where people are well behaved. Then came the antagonism and the allergy. 'Himachal must ensure,' he said, 'that people should not allow outsiders from other states to communalise the election campaign...'
He was responding to queries regarding the possibility of the 'Hindutva' card being played by the Bharatiya Janata Party.Some had thought the CEC's oral assault on the Vadodara collector and other officials in Gujarat before the state assembly election there and his unwillingness to conduct the poll within the time-limit desired by Narendra Modi's BJP government were only aberrations of righteous indignation at the post-Godhra arson, looting and killings. But, now in Shimla, his rage at Hindutva had been truly exposed. No authority in our democracy has the right to prohibit inter-state movement of its citizens. Not even Bal Thackeray can do that.
Lyngdoh didn't stop with that Shimla. Even as campaigning for the HP election was picking up with certain non-government organisations putting up hoardings about the progress achieved by the BJP-ruled state, the CEC ordered the removal of those hoardings. Among those hoardings was one which displayed a statement by Chief Minister Prem Kumar Dhumal of April 3, 1998 to the effect that his government was committed to harnessing expeditiously HP's immense hydel potential. How this statement violates any code of conduct anywhere in the world can be revealed only by James Michael Lyngdoh.
Recall how the CEC thwarted the Modi government's attempt at early elections. The government had argued that the board examinations for schools across the state had passed off without communal incident; so it was with the Mahashivratri and Muharram festivals and the return of Muslims from their Haj pilgrimage. Hence, Modi argued, the atmosphere was not at all vitiated against a timely poll. The CEC was unmoved; in fact, he issued a 61-paragraph report on August 16, 2002 making out a case for the imposition of President's Rule in Gujarat.
But it was the same CEC that had, in the same month, believed Jammu and Kashmir to be conducive for an electoral exercise, never mind the unending acts of terrorist killings and bombings and IEDs. The CEC undertook two visits to decide against holding elections in Gujarat before the expiry of six months since the last assembly session was adjourned, but he didn't make a single on-the-spot assessment prior to announcing the election schedule of Nagaland, Meghalaya and Tripura -- three states long-infested by strife and violent tribal unrest.
Why, when the code of conduct came into effect in Meghalaya, he even refused to take any action against a minister of the ruling government there who violated the code by inaugurating a school building in his constituency.
This tale of the CEC's bias reached a ridiculous height in Kolkata on February 1 when he met MPs, MLAs and leaders of political parties. According to a PTI report published in The Free Press Journal, Mumbai, on the next day, he attacked the BJP's style of electioneering in Gujarat, saying it came out with 'new tricks' in communal campaigning.
Reporting on the same meeting, The Indian Express, Mumbai, of February 2 told us about the CEC saying that such campaigning would lead to the erosion of the country's democratic process. The newspaper quoted him as saying, 'Democracy seems to be diminishing in the country. If there is no democracy, there is no need for an Election Commission. But I hope... democracy survives.'
It is ironic the man who moans about a diminishing democracy forgot he himself publicly charged J&K's National Conference of attempting to sabotage the state assembly polling without giving any proof of his allegation. It is ironic that someone who revels in talking down others should moan about democracy
Some issues arise in this highly disturbing scenario surrounding the nation's Election Commission.
The first, and a relatively minor one, is the role of the two election commissioners who, with the CEC, constitute the Election Commission that, under Article 324(1) of the Constitution of India, is entrusted with the 'superintendence, direction and control of the electoral rolls for, and the conduct of, all elections to Parliament and the Legislatures of every State...'
How come these two election commissioners always toe the CEC's line? How come there never appear to be differences of opinion among the three? It is difficult to accept that in a democracy as vibrant as India's three men can concur on the banning of innocuous private hoardings in Himachal Pradesh, on postponing Gujarat elections but having them as scheduled in the Pak-terrorised states of J&K, Meghalaya, Nagaland and Tripura, and on telling a state's citizens from banning entry to outsiders.
The truth about these 'unanimous' but inexplicable decisions of the EC has unfortunately not been told even in gossip columns of our press. The suspicion is the CEC simply throws his weight around and his two colleagues fall in line or choose to remain silent.
The reason for that may well lie in clause (5) of Article 324. Under that clause the CEC can be removed from office only through the manner prescribed for removing a Supreme Court judge; parliamentary impeachment stipulated in Article 123(4), but an election commissioner or a regional commissioner is denied such protection and can be removed from office at the CEC's mere recommendation. Thus, only the bold and the bountiful EC will dare oppose his boss, make his dissent public and risk losing his comfy perks prematurely.
Till such ECs come, we the people will have to suffer the ignored warning H V Kamath gave to the Constituent Assembly on June 16, 1949. Kamath had then said, 'I feel that most of the time of the election commissioners will be used in doing what I may call khushamat, to keep the Chief Election Commissioner in good humour because it will be only natural, human nature being what it is, lest the Chief Election Commissioner should give a bad chit.' (http://parliamentofindia.nic.in/debates/vol8p23b.htm)
The second issue is that while security of tenure constitutionally granted to the CEC is similar to that of a Supreme Court judge, his appointment is made differently. While every Supreme Court judge has to be appointed with the consensus of a collegium of four seniormost judges of that court, no such procedure exists for the appointment of the CEC. And, as pointed out by Pandit Hirday Nath Kunzru during the Constituent Assembly debate on what finally became Article 324, 'This Article does not lay down the qualifications of persons who are chosen as Chief Election Commissioner or as election commissioner.' (http://parliamentofindia.nic.in/debates/vol8p23a.htm).
Consider James Lyngdoh's promotion from the post of EC to CEC. Unknown to many, a Punjab and Haryana high court judgment in May 2000 reprimanded Lyngdoh for forcing Haryana Chief Minister Om Parkash Chautala out of his native town under the threat of drastic action without assigning any reason.
In that pronouncement, Justice Chalapati came down heavily on the then EC, J M Lyngdoh, saying his action of verbally directing the Haryana chief minister to leave the Bhiwani parliamentary constituency during the September 1999 general election and preventing him from casting his vote was 'not warranted under law.' Justice Chalapati added that, 'The action of Mr Lyngdoh giving oral instructions deserves condemnation and is to be deprecated. The Election Commission is not supposed to act as a super authority. It has to function within the limits of law. No one in the country, however big they may be, can be above law.' (The Pioneer, New Delhi, August 23, 2002).
How, then, was that brusque record overlooked when the NDA government elevated James Lyngdoh to the position of CEC?
In the light of the extreme Constitutional protection given to the CEC to ensure his independence from executive influence, the over zealousness for 'free and fair' elections exhibited by the CECs from T N Seshan onwards seems to have lulled the nation into forgetting the sane advice given by Naziruddin Ahmad in the Constituent Assembly. He had advocated that 'the first thing we should do is to control the conduct of elections, not to interfere with the policies and the activities of the different parties, but just to ensure impartiality and efficiency in the conduct of elections.' (http://parliamentofindia.nic.in/debates/vol8p23a.htm).
Indeed, K M Munshi's comment during that Constituent Assembly debate should now sound an alarm bell in all political parties who have tended to play second fiddle to the CEC. Said Mr Munshi, 'It is not possible nor advisable to have a kingdom within a kingdom, so that the election matters could be left to an entirely independent organ of the government. A machinery, so independent, cannot be allowed to sit as a kind of super-government to decide which government shall come into power.' (http://parliamentofindia.nic.in/debates/vol8p23a.htm).
Time seems to have come when our Parliament must seriously review the matter and take measures to ensure that what the nation gets is a sober and sagacious CEC, not a self-possessed sort of CEO.