Aditya Prasanna Bhattacharya

Ashok Lavasa’s dissents in the ECI’s “clean chits” to Modi give us occasion to turn back the pages of legal history, in order to understand how the Election Commission came to be a multi-member body in the first place. This enables us to more effectively contextualise Lavasa’s dissents.

This post is the 9th Installment to Law School Policy Review’s Election Series, 2019.

The Election Commission (ECI) has come a long way since the days of Chief Election Commissioner T.N. Seshan, who had once famously commented: “I eat politicians for breakfast.” This election season, the ECI has been a mere shadow of its former powerful self. It has been accused of being complacent at best, and “in cahoots” with the political establishment at worst.

It is not that the Commission has suddenly lost its powers. Under Article 324 of the Constitution, it has always enjoyed wide-ranging powers for the “superintendence, direction, and control…of the conduct, of all elections to Parliament”. In fact, it has been said that the ECI is the most powerful poll watchdog in the world, as it enjoys almost unbridled powers in its own field.

Its preferred instrument, through which its powers are manifested, is the Model Code of Conduct (‘Code’) which is a collection of norms drafted and enforced by the Election Commission of India (‘ECI’). It lays down a general set of rules to be followed by all political parties before and during the election process, both at the national and state level. Aimed at ensuring the existence of a level playing field, the MCC comes into force as soon as the dates for elections are announced. This year, it came into force as soon as the elections were announced on March 10.

Ever since, the Commission has handed down several punishments for violations of the Code, including campaign bans on Yogi Adityanath, Mayawati, Maneka Gandhi, and Azam Khan, among others. But as is always the case, some are more equal than others. When it comes to the incumbent Prime Minister and his tryst with the Code, the ECI has been loath to use its powers. Many commentators have argued that the Commission has consciously chosen to ignore objectionable material, while repeatedly giving the PM “clean chits” for his speeches. It is fairly clear that the Commission is using a lower standard of scrutiny while reviewing the PM’s speeches. Having said that, a lot has been written on this debate, and it is not my intention to go into it again. Instead of looking at the why the ECI has been deciding in a particular fashion, I will look at how the three-member Commission functions, in order to obtain the much-needed understanding of how it decides.

In this regard, it has been reported that five of the six clean chits given to the PM and his colleague Amit Shah were decided by a 2-1 majority, with Election Commissioner Ashok Lavasa dissenting. Such dissents have the same value (or lack thereof) as a dissent delivered in a Court of law. Since the majority opinion prevails, there is hardly any legal value to a dissent. But there is immense demonstrative value, as it allows the dissenter to leave behind her mark, furthers the idea of a ‘deliberative democracy’, and in doing so, bolsters the legitimacy of the institution itself.

Read together, Sections 10 (2) & 10(3) of the The Chief Election Commissioner And Other Election Commissioners (Conditions Of Service) Act, 1991, provide that in case a unanimous decision cannot be reached, any decision should be taken as per the opinion of the majority. Undoubtedly, therefore, there is room for dissent within the Election Commission.

Using Lavasa’s dissents as the starting point, let us now reflect on the surprisingly interesting legal history of how the Commission came to be a three-member body in the first place. This will enable us to place his dissents in a very specific legal & historical context, which, in turn, will allow us to understand the value of such dissents in our democratic set-up.

The Constituent Assembly saw it fit to appoint only one ‘Chief Election Commissioner’ (CEC), as they thought only one person would be enough to oversee what they envisaged to be simultaneous elections, held once every five years. Article 324(2), under which the appointment of the CEC is to be made, also mentions that in addition to the CEC, the “…Commission shall consist of…such number of other Election Commissioners, if any, as the President may from time to time fix…”. As former CEC Navin Chawla writes in his book Every Vote Counts, the Constituent Assembly envisaged the additional Commissioners as temporary appointments, to be made only during the time of elections to manage the additional workload.

Since India saw simultaneous elections till 1969, the need to appoint additional Commissioners did not arise. In 1969, however, the General and state elections fell out of sync, giving rise to a staggered and more frequent election cycle. Add to this the growing desire within political parties to curb the power of the sole CEC, and the appointment of multiple Commissioners was imminent. In 1989, in the exercise of his powers under Art. 324(2), two additional Commissioners were appointed by the President. After the subsequent government came into power, however, it promptly abolished these posts.

In 1993, however, P.V. Narasimha Rao’s government decided to muzzle the almost unrestricted powers being wielded by the then CEC, T.N. Seshan. He did this by appointing two additional Commissioners, G.V.G. Krishnamurthy and M.S. Gill. Seshan was furious, as he saw this as an open attempt at diluting his powers. With good intentions at heart, he (along with a few other petitioners) moved the Supreme Court by way of a writ petition, challenging the appointment of the additional Commissioners as ultra vires the Constitution. While the apex Court adjudicated this claim, Seshan made sure that no work was given to Krishnamurthy and Gill. In the words of Navin Chawla, he “treated them shabbily”. Unfortunately, many commentators have ignored the fact that this shabby treatment had in fact received the imprimatur of the Supreme Court itself. In an ad interim order passed while issuing notice in the petition, the Court had stated:

“Until further orders, to ensure smooth and effective working of the Commission and also to avoid confusion both in the administration as well as in the electoral process, we direct that the Chief Election Commissioner shall remain in complete overall control of the Commission’s work. He may ascertain the views of other Commissioners or such of them as he chooses, on the issues that may come up before the Commission from time to time. However, he will not be bound their views. It is also made clear that the Chief Election Commissioner alone will be entitled to issue instructions to the Commission’s staff as well as to the outside agencies and that no other Commissioner will issue such instructions.”

This ugly episode finally came to an end two years later when the Court handed down its decision in the matter of TN Seshan, Chief Election Commissioner v Union of India, (1995) 4 SCC 611. Upholding the appointment of the additional Commissioners, the Court rejected Seshan’s petition in whole.

It was first clarified that Article 324 indeed allows the Election Commission to be a multi-member body. This is because Art. 324(3) expressly provides that in case of a multi-member Commission, the CEC shall “act as the Chairman…”. A.M. Ahmadi, CJ, very pointedly observed that if Art. 324 did not envisage a multi-member body, then there was no need for clause (3) at all.

Further clarifying that even if a multi-member Commission cannot be found within Art. 324, a multi-member Commission cannot run afoul of the Constitutional framework. In this regard, the Court cited with approval its own decision in S.S. Dhanoa v Union of India & Ors., (1991) 3 SCC 567, wherein it was explicitly held:

“There is no doubt that two heads are better than one, and particularly when an institution like the Election Commission is entrusted with vital functions, and is armed with exclusive uncontrolled powers to execute them, it is both necessary and desirable that the powers are not exercised by one individual, however, all-wise he may be.” (¶26)

The Court then observed that under Art. 324, the responsibility for conducting elections is vested in the Election Commission as a body, and not in the Chief Election Commissioner as an individual. Importantly, the Court stated: “[The CEC] is merely the creature of the institution, he can exist only if the institution exists.” In a situation where the Election Commission is a single-member body, the CEC is merely the “alter ego” of the Commission. When the EC is a multi-member body, then the CEC is supposed to act as the Chairman, as per Art. 324(3):

“The function of the Chairman would, therefore, be to preside over meetings, preserve order, conduct the business of the day, ensure that precise decisions are taken and correctly recorded and do all that is necessary for smooth transaction of business. The nature and duties of this office may very depending on the nature of business to be transacted but by and large these would be the functions of a Chairman”. Importantly, the Court points out that the Chairman may find it difficult to win the confidence of his colleagues “if he thinks that others who are members of the Commission are his subordinates.”

The Court then rejected the argument that the role of the additional Commissioners is only to tender advice to the CEC. If the CEC is considered to be superior to the other Commissioners, then this would render them mere “ornamental” functionaries. According to A.M. Ahmadi, CJ, such an intention runs against the grain of Art. 324 and is difficult to glean from the Constituent Assembly debates.

The Court noted the argument advanced by Seshan, that Art. 324 does not lay down any procedures/rules for the functioning of a multi-member Commission. According to Seshan, the consequence of this is two-fold: first, the Court must not read in the existence of a multi-member Commission in the first place; and second, even if a multi-member Commission is allowed to exist, the CEC is to be considered the supreme authority within it. As per the petitioners, this is the procedure for operation within the Commission that is compliant with Art. 324. But this argument did not find favour with the Court. Referring to Halsbury’s Laws of England, the Court observed that the principle of majority is the default form of decision-making in a multi-member body, and can validly fill the procedural void left by Art. 324. The Court noted that other constitutional institutions, such as the Public Service Commission and the National Commission for SC/ST are also multi-member bodies which follow the principle of majority while making decisions.

The Court further found that mala fides/malice could not be attributed to the President/Council of Ministers for their decision to expand the size of the Commission, since this reform had been in the works for a long time. Simply because Seshan had wielded the MCC in a manner that was disadvantageous to the ruling party at the Centre, the Court could not automatically jump to the conclusion that this was the trigger for the impugned Ordinance. Interestingly, the Court did not stop at this. It not only rejected Seshan’s argument of mala fides, but also held that the addition of two additional Commissioners was in fact a positive policy reform. Chiding Seshan for his instances of abrasive (and sometimes unjustifiable) displays of power, the Court stated: “The CEC is, it would appear, totally oblivious to sense of decorum and discretion that his high office requires even if the cause is laudable.”

The final question was that of legislative competence. Seshan had urged that under Art. 324, only the Commission itself if empowered to evolve its own procedure and rules of functioning, and that the Parliament or the President are incompetent to intervene by way of Legislation/Ordinances. The Court adopted a very clever (and slightly questionable) tactic to side-step this argument. It stated that even if Seshan’s argument were to be accepted, the procedure evolved by the Commission itself would, in any case, have to be the same as that which had been evolved through the Ordinance. In other words, even in the usual course of things under Art. 324, decision-making within the Commission would have to be done by unanimity, failing which the principle of majority would be resorted to. Since the Ordinance lays down the same procedure, the question of legislative competence is held to be irrelevant by the Court.

Thus, the question of legislative competence has still been left open. The ratio decidendi, limited to this point, seems to be: If the legislative act creates a structure/procedure that the Election Commission would anyway have to comply with under Art. 324 (such as the principle of majority), then the question of its validity does not arise. If however the Parliament/President creates a procedure that is violative of Art. 324, then the legislative competence giving rise to such procedure can be called into question.

In its parting comments, the Court lamented the state of affairs within the Commission, and emphasised the need for reconciliation:

“We hope they will forget and forgive, start on a clean state of mutual respect and confidence and get going with the task entrusted to them in a sporting spirit always bearing in mind the fact that the people of this great country are watching them with expectation. For the sake of the people and the country we do hope they will eschew their egos and work in a spirit of camaraderie.”

After having traversed the history of how the Commission came to be three-member body, let us now return to the present. Ashok Lavasa’s dissents serve to reinforce the Supreme Court’s opinion in the Seshan case., wherein A.M. Ahmadi, CJ, had observed: “It is wrong to think that the two ECs were pliable persons who were being appointed with the sole object of eroding the independence of the CEC.” The fact that one of the additional Commissioners has chosen to fearlessly dissent with the opinion of the CEC shows that a multi-member Commission bolsters the principle of a deliberative democracy. The irony of locating Lavasa’s dissents in the context of the T.N. Seshan case should not be lost on us, as it was Seshan himself who is universally credited with “cleaning up the electoral system”.

In any case, to compare the present scenario to Seshan’s case is a bit of a stretch, since there is no sign of a rift within the ECI at present. Having said that, it is unfortunate that the ECI has refused to release the Lavasa’s dissents as part of its Orders. A dissent only has value when it can be read by all and sundry. Otherwise, Lavasa’s acts of defiance will remain mere footnotes in the pages of electoral history. The Election Commission, and especially its Chief, Sunil Arora, would do well to keep in mind Ahmadi, CJ’s parting words in the T.N. Seshan case: “the people of this great country are watching them with expectation.” It remains to be seen whether the ECI can return to the stature it enjoyed under Chiefs like T.N. Seshan and J.M. Lyngdoh.

Image Source: Hindustan Times & Scroll.in