Electoral reforms have been a topic of discussion for several years now. The provocation for this particular piece is the 52nd report of the parliamentary standing committee on law and justice, in whose jurisdiction the election commission of India (ECI) falls. The report, presented to the Rajya Sabha and laid on the table of the Lok Sabha on May 21, is actually on the demand for grants for 2012-13 but it makes some interesting observations, under the heading “Model Code of Conduct”.

The first interesting observation is: “The Committee recommends that the recommendations of the All-Party Committee on Electoral Reforms which submitted its report in May 1990 on the subject matter may be taken into consideration” (Para 3.16). The reference is to what is popularly known as the Goswami Committee Report on Electoral Reforms. In the intervening 22 years since then, several other eminent groups have applied their minds to the issue of electoral reforms, some of the prominent ones being the following: The Vohra Committee Report of 1993, the Indrajit Gupta Committee Report on State Funding of Elections of 1998, the Law Commission of India Report on Reform of the Electoral Laws in 1999, the Report of the National Commission to review the Working of the Constitution submitted in 2001, Electoral Reforms proposed by the Election Commission of India in 2004, and the latest, the report of the Second Administrative Reforms Commission submitted in 2008.

In addition, the law ministry conducted seven regional consultations on electoral reforms in 2011, in association with the ECI. These were to be followed by a national consultation for which time has not been found so far. There were also reports that a draft bill on electoral reforms had been prepared and had been discussed by the law minister with the prime minister on more than one occasion. But it is baffling that the standing committee should refer only to a report that is 22 years old, ignoring everything that has happened since.

The latest episode in this continuing saga is the letter that the then, and outgoing, chief election commissioner, SY Quraishi, wrote to the prime minister on April 13, before demitting office on June 10. Some excerpts from the letter, accessed by filing an RTI application, given below exemplify the frustration of those trying to improve the electoral system in the country:

“Hence allow me Sir, to place before you the Commission’s deep disappointment over the fact that a necessary legislation in this regard is yet to be materialised despite an assurance given to us by the Hon’ble Minister of Law and Justice.”

“However, the quality of our elections often gets questioned on account of certain weaknesses in our electoral process. Commission’s reform proposals have always aimed at addressing this predicament. Though certain minor reforms have been adopted by Government and Parliament, the substantial ones have been actually left out allowing the allegations that politicians are not keen about the reforms because of their vested interest.”

“I would like to bring to your kind notice that some proposals which are of technical nature and require only amendment of Rules within the competence of the Ministry of Law and Justice, have also been pending for a long time. This raises questions about the lack of political will, which causes us deep distress”.
Rightly observing, in Para 3.17, “that Model Code of Conduct is a voluntary agreement between the parties for regulating the conduct of political parties and its members etc. during the process of elections to Assemblies and Parliament,” the standing committee describes its legal status as “a grey area”.

Observing further, “…considering the problems which have erupted in the country, from time to time, in the last few years…”, it goes on to maintain that “the Code, which was voluntary in nature at one time has not remained so…” in view of the Election Symbols (Reservation and Allotment) Order, 1968. It is worth pointing out that this order has been challenged in the supreme court more than once, and has been repeatedly upheld as valid.

Then, in Para 3.18, the committee “further observes that the power of cancellation of registration of a political party is substantive in nature and, therefore, should not be regulated or provided for under an ‘Order’ of the Commission. It should either be a part of the Representation of Peoples (sic), Act 1951 or the Rules framed there under”. This is very confusing because the “order” of the commission, and in particular Para 16-A to which the committee specifically refers, has no mention at all of “registration”, it only mentions “recognition”. The difference between “registration” and “recognition” is substantive in nature, to use the committee’s terminology, and the seemingly inappropriate use of the expression seems extremely surprising, given the great care that is taken (as indeed it should be) in preparing the reports of such exalted committees. Details of the actual discussions in the meetings of the committee are not known as a footnote on the website informs that relevant minutes of the meetings of the committee will be “appended at printing stage”.

Then the committee suggests an examination of “the scope of Article 324”, before concluding, “Remedial legal steps are required to be taken in this regard.”
Reading between the lines, it appears that this is yet another attempt at “clipping the wings” of the ECI by the political establishment. The political establishment appears to be extremely defensive about the electoral system and refuses to see infirmities that seem obvious to every observer of the system. Even the then president, while inaugurating the golden jubilee celebrations of the ECI in New Delhi on January 17, 2001, referred to the “serious malpractices that have crept into the election process”.

Any action taken by anyone, including the ECI, to cleanse the electoral process of its infirmities is looked at with suspicion and opposed. The ECI has been on this receiving end since the early 1990s. Its recent actions to minimise the ill effects of money and muscle powers on the outcome of elections are what the political establishment considers to be “the problems which have erupted in the country, from time to time, in the last few years”.

One of the standard stratagems to clip the wings of the ECI is to give legal/statutory status to the model code of conduct (MCC). The idea, simply, is that once violations of the MCC come under the jurisdiction of the courts, the ECI will have to go to court to act against the violations, and the courts will take their own time, by which time the election will be over.

One of the most important reasons why the MCC has been so effective over the last 20 years is the swiftness of the actions taken by the ECI. Making the MCC part of the Representation of People Act will straightaway remove the capability of the ECI to take swift action. This is a straightforward case of the political establishment using the most drastic Parkinson’s Law: Delay is the deadliest form of denial.

Even more insidious is the suggestion for examining “the scope of Article 324”. Article 324, as will be recalled, is the most critical one for the conduct of elections as it vests the plenary power of “superintendence, direction and control of elections in (the) Election Commission”.

Putting the legal straightjacket on the MCC and any change in Article 324 will remove even the semblance of freedom and fairness from the election process, making it a plaything for political parties which have not covered themselves with glory in their collective behaviour towards elections in terms of choice of candidates etc. in the last decade or so.

It is therefore necessary to resist this attempt to emasculate the entire electoral process, and to save the MCC.