July 07, 2020
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Commission Of Omission

The statutory body for conducting ­elections is ­today a pale shadow of its once-independent self

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Commission Of Omission
Commission Of Omission
outlookindia.com
2016-07-29T23:56:59+0530

Roshan Shah contested two Lok Sabha elections even though he is a Canadian citizen. “The Election Commission of India,” he told Outlook from Canada, has absolutely no system of verification. “I filed affidavits with wrong information twice, but no action has been taken against me so far. The problem, really, is with the Election ­Commission itself.”

While the Election Commission (EC) is credited with performing a miracle election after election, most of its recommendations on electoral reforms have been ignored by successive governments. The nature of elections, say old-timers, has changed beyond recognition with more money, more muscle and more technology being deployed by everyone concerned. But much-needed amendments to the Representation of the People Act are yet to be carried out.

And now the EC has once again come under a cloud after it was reported that it communicated to the government its willingness to conduct simultaneous elections for panchayats, state assemblies and the Lok Sabha after being prodded by the PMO. Could it be following the line of least resistance?

Similar questions had been raised in May when the EC abruptly closed an inquiry and released three “lorries carrying a whopping Rs 570 crore in cash” ahead of the Tamil Nadu elections. And now with the Delhi State Election Commission informing a court of its inability to produce the original affidavits filed for the 2004 general election by textiles minister Smriti Irani, former minister Kapil Sibal and other candidates in the Chandni Chowk constituency, an impression is gaining ground that the EC is acting under political pressure.

Shah also draws attention to anomalies in the law. Under the Representation of the People Act, filing a false affidavit can get you three years in jail if the FIR is filed by the returning officer but only six months if it is filed by a third party. Under the Indian Penal Code, though, punishment for forgery is 10 years in jail.

While the BJP and PM Narendra Modi have shown little inclination to accept the EC’s recommendations and make necessary changes in the Representation of the People Act, they have been promoting the idea of simultaneous elections to reduce costs and also to ensure that the routine work of governments does not get stalled due to the model code of conduct. It figured in the BJP manifesto and the prime minister also called for it in his radio talk, Mann Ki Baat.

It has now been revealed that the EC had received a communication from the PM’s principal secretary, Nripendra Mishra, before it firmed up its stand that given more funds, logistical support and manpower, it would be able to conduct simultaneous elections across the country. While this would require amendment of the Constitution, experts and former election commissioners have been quick to point out the practical difficulties associated with it. A fixed and uninterrupted term at all three tiers and one-time polling, they say, may look ideal on paper, but runs the risk of mixing up local, regional and national issues. Moreover, if any government fails to last for any reason—even the central government had once lasted only 13 days—it would be back to square one.

Opinion, however, is divided on the culpability of the EC. Since even a parliamentary committee has endorsed the idea of simultaneous polls, it would be unfair to blame the EC for going along with it, some say. The EC was asked a specific question—whether ­sim­ultaneous elections can be held—and the commission listed the requirements that would enable it to do so, ­explains an insider.

Similarly, the insider points out, the EC is not required to preserve the affidavits filed by candidates indefinitely. It is only when elections are challenged and petitions are filed that the original documents need to be preserved for the scrutiny of the court. But the petition alleging that Irani claimed different educational qualifications in the affidavits she filed in 2004, 2011 and 2014 is a new situation. In any case, the EC is not mandated to carry out a scrutiny of the claims made in the affidavits and it is for political opponents to bring up any doubts they might have.

The EC has informed the court that photocopies of the said affidavits are available on its website and with courts increasingly accepting digital and electronic documents as valid evidence, not much damage may have been done by the missing affidavits, say experts. K.J. Rao, who retired from the EC after putting in several decades, points out that no political party wants to give the commission more powers. “Even the provision for NOTA (None of the Above) came from the court,” says Rao. “The Election Commission is always under pressure and has a hard job to do. But it does try its best to ensure free and fair polls. The political parties are to blame for everything.”

Insiders offer alibis on why the EC cannot be faulted for not pursuing the curious case of Rs 570 crore in cash seized by one of its flying squads in Tamil Nadu. It detained the lorries transporting the cash for three days and released them after the polls got over, thus ensuring the money was not used to influence the outcome of the election. The lorries were released at the behest of the Income Tax department and only after the State Bank of India claimed that the money was being shifted from its chest. It was for other agencies to investigate the source of the money and see if any law had been flouted, argues an EC official.

With a single-judge bench of the Madras High Court ordering a CBI inquiry into the matter, questions have resurfaced about whether the EC should have pursued the matter. Could it be that the cash was meant for use in other states, to influence other elections? Could the money have been meant for ‘buying’ votes for the biennial elections to the Rajya Sabha that were round the corner?

Justice R. Subbiah’s order for a CBI inquiry has brought out so many discrepancies (see chart) that it is difficult to conclude the transaction was meant to be above board.

The court was not impressed by CBI counsel’s argument that since the transaction did not involve any government servant, did not amount to any loss to the government and had no ­international ramifications, there was no need to involve the CBI.

The CBI counsel, in fact, argued that all that was required to settle the matter was a clarification by the State Bank of India and the Reserve Bank of India. The SBI had given in writing that the money was taken out of its chest ­following directions by the RBI. But the court noted that RBI, Chennai, had ­denied giving any such direction and that, in any case, RBI guidelines for moving cash had clearly been flouted. Pointing out various other discrepancies that had come to light, the court observed it was the CBI’s duty to ­conduct an inquiry.

The case of the mystery cash highlights the increasing and new challenges faced by the EC. And yet neither the prime minister nor any political party appears inclined to heed the commission’s recommendations to curb the power of money in elections.

***

Another  Dead  End?

While the EC detained the lorries carrying cash and the Madras High Court ­ordered a CBI inquiry, indications are it will all end as a damp squib

  • Date:  13/5/2016
  • Time:  45 minutes past midnight

Three lorries and three Innovas  try to dodge a flying squad of the Election Commission. Intercepted after a chase,  the lorries were found to be carrying Rs 570 crore in cash. On July 4, Justice R. Subbiah of the Madras High Court orders a CBI inquiry.

Discrepancies

  • Fake number plate AP-13-X-5204 on lorry; number registered as an Innova
  • Registration certificates of lorries with numbers AP-13-X-8650 and 5203 had photographs of the same person but with different names
  • While SBI claimed the money was moved from its chest, the 195 sealed boxes had the markings of Axis Bank
  • Letters from SBI did not  carry any file or reference number
  • While SBI claimed the cash was being transferred following directions of the Reserve Bank of India, RBI, Chennai, ­denied issuing such direction
  • RBI guidelines for cash transfer lays down that high-volume cash would be transferred by rail and escorted by local police. Both guidelines were flouted.
  • People in the three vehicles claimed to be private security officers but were not in uniform
  • Documents produced did not have the numbers of the lorries being used
  • Unusually, the Income Tax department wrote to the EC for the lorries’ release

By Anoo Bhuyan with Uttam Sengupta in New Delhi

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