Empower the Election Commission, don’t circumscribe it

It is quite unfortunate the Supreme Court has stayed the Election Commission order removing former Madhya Pradesh chief minister Kamal Nath as a star campaigner of the Congress party for the upcoming by-polls in the state. The apex court’s stinging takedown of the poll regulator, questioning from where it derived the power to de-list a leader as a star campaigner, strikes a blow against the Constitutional body’s authority.

At a time when the electoral discourse has dipped to shockingly low levels, the need is for the ECI to be empowered in a manner that preserves the faith of the electorate in democratic-electoral politics. Indeed, the ECI had first removed Anurag Thakur and Parvesh Verma as star campaigners of the BJP for their communally-charged speeches in the run-up to the Delhi election earlier this year before gagging them for a short duration. At the time, this newspaper had argued that this was a mere slap on the wrist.

Arguing that Nath’s impugned remarks don’t present the same danger as the speeches of Thakur & co, as some social media users seem to suggest, is deliberate misdirection. The issue is not the degree of offence—though it would be hard to argue that misogyny poses a lesser threat for social stability than communalism—it is of the ECI’s powers to punish parties/leaders for what it deems as poll violations.

The model code of conduct assumes observance by political parties, leaders and candidates. Without explicit powers to enforce it with punitive measures—the ECI, in its order on Thakur & co, cited the broad powers outlined in Article 324 of the Constitution—the election watchdog lacks bite.

There are certain provisions under which the regulator has tried to empower itself—for instance, the Election Symbols Order empowers it to suspend or withdraw recognition of a political party for violating its lawful direction and instructions—but these have been rarely exercised, perhaps given the legal challenge these could trigger. At a time when there has been an explosion of communication technology that complicates the ECI’s policing mandate as also underscores its capacity limitations, the need is to strengthen the commission, not circumscribe its jurisdiction.

It is true that ECI has not always been as proactive as would have been desirable—indeed, in the run-up to the parliamentary polls last year, the Supreme Court had to direct it to act against ruling party campaigners for violation of the MCC in their campaign speeches. But, to knock it back at a time when it has chosen to act against a violation of the MCC is demoralising, not just for the commission but also for electoral politics in general.

The solution to this, however, lies with the political executive. It must first create, through the parliamentary process, the legislative framework to give the commission clear and explicit powers. To avoid the charge of the commission being politically aligned—commissioners, including the chief election commissioner, are named by the government—a multi-partisan naming system, like that followed for the heads of various other Constitutional/statutory bodies, needs to replace the current system. But, that is akin to asking the cat to bell itself.

Whether the ECI retains the tough superintendent mantle it assumed in the 1990s will depend on how much political will parties across the spectrum are ready to show.