ECI Flip-Flop on Electoral Freebies is Clear Shift from Its Ideals and Glory

The Election Commission, which had been a sleeping giant for over decades, gained enormous strength and confidence with the reputation of an unbiased and impartial poll monitor in the 1990s under the able leadership of former Chief Election Commissioner T.N. Seshan. Seshan set a benchmark for this important constitutional institution, which had been losing its…

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Mohd Naushad Khan

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The Election Commission, which had been a sleeping giant for over decades, gained enormous strength and confidence with the reputation of an unbiased and impartial poll monitor in the 1990s under the able leadership of former Chief Election Commissioner T.N. Seshan. Seshan set a benchmark for this important constitutional institution, which had been losing its credibility – year after year and election after election.

The recent letter sent by the Election Commission of India (ECI) to political parties, asking to explain how they would raise money to pay for their poll promises and its economic consequences, was against the ideals set by ECI for itself. In recent years, the ECI mode of conducting elections has also been questioned many times for its ‘partisan behaviour’.

In August, 2022, while welcoming setting up of a panel on poll promises, the ECI said that it may not be appropriate for the Commission, being a constitutional authority, to be part of the expert committee, especially if there are ministries or government bodies in the panel.

The ECI further said it is very difficult to define irrational freebies and that a variety of factors, including nature and contours of promise, its scope of coverage, prevailing context and specific situation will need to be examined to ascertain if any electoral promise could disturb the level-playing field.

“Due regard to varying aspects of social, economic, political equity/ inclusion, sustainability of finances and fiscal space in short/ medium/ long-term and cross sectoral implications, such as environmental sustainability, further add complexity to the understanding of the term freebies,” added the EC.

Before the bench, ECI took a stand that it cannot regulate distribution of freebies and that it is only for the voters to decide whether they should elect leaders even if such poll promises and its implementations could harm the economy of the country.

According to Professor Jagdeep Chhokar, Co-Founder of the Association for Democratic Reforms (ADR), former Professor, Dean, and Director-in-Charge, Indian Institute of Management, Ahmedabad, “The first thing Election Commission should not have done this. Earlier on 2 March, in this case the EC had given an affidavit to the Supreme Court, writing that any step in this direction by the EC would mean exceeding its power. It should be decided by the voters. In the hearing, the EC had said it cannot do anything; only the Supreme Court and the Parliament can do this. The government had said they also cannot do anything in this issue. The Supreme Court then said that it is strange that both the EC and the government cannot do anything in this regard.”

“During the hearing, it was also argued that it should be given to the Finance Commission and not the EC. However, the function of the Finance Commission is to see how the revenue sharing can be done in between state and the Centre and the Finance Commission has got nothing to do with the freebies and the election manifesto. On 16 July, the Prime Minister of India had said in a programme that there should not be revadi culture,” he added.

“On 4 October, the Election Commission woke up and said it is very important and it should be done. After this flip-flop by the EC on freebies, one can clearly understand the inclination and the intention of the EC on this issue. The role of the Supreme Court of India in this issue was also far from satisfactory. It is the responsibility of the Supreme Court to decide on any issue as to whether it should be done or not as per the law and its interpretations. The role of the Supreme Court is interpretation of the Constitution and the implementation of the rule of law,” ADR Co-Founder averred.

On the model code of conduct, Professor Chhokar said, “The model code of conduct on which the EC has said is not the realms of the EC. Model code of conduct is a provision of that period when Congress used to be the dominant political party. The model code of conduct is a document in which it is said that the political parties will abide by the law of the land and it was decided by the political parties themselves. Election Commission is the custodian of the model code of conduct and it is not entitled to change or amend the model code of conduct.”

On the poll promises, the former IIM Ahmedabad professor said, “On the poll promises there is dichotomy as to what could be for the welfare or freebies. One can say cycles given by the Samajwadi Party to girls can also be said to be women empowerment. The interpretations on poll promises as freebies or for the social welfare have to be decided by the voters and not the EC. The proforma made by the Commission is ridiculous because in that proforma half of it will be filled by the state government during elections in the state and the Centre during general elections on the basis of revised estimate.”

On the role of the government and the independent identity of the EC, he said, “The government is trying to control the proceedings of elections. During simultaneous elections debate, it was said that if elections are held simultaneously, it will cost less. They are trying to make elections a ritualistic affair to be pre-controlled by the government. It is to reduce the real worth and value of concept of democracy and elections rather than improving and strengthening democracy. The manifesto is implemented by the government and not political parties. The present government does not differentiate between party and the government. It is also a point which has to be taken into account.”

“There is a general perception that institutions of governance are experiencing trust deficiency because of their deteriorating stature and succumbing to the political power. It is mainly because of their weakening autonomy for which both the governments of the day and the top leadership of the institutions are responsible.  The political parties in power often try to achieve their vested political interests by arm twisting of these institutions or by appointing pliable persons at the helm of these institutions who many a time, in the effort to please the political powers that be, compromise with the autonomous functioning of the institutions,” said Professor Ranjit Singh Ghuman, an economist and political commentator.

“The functioning of the Election Commission of India may also be seen in this broader framework. The Constitution of India gives autonomy to the Legislature, Judiciary and Executive and hence it is their constitutional duty to never compromise on it and uphold their autonomy. It is also in the enlightened interest of the State, Government and the institutions that they should not only function as per the Constitution of India but must also be perceived as functioning independently,” he added.

“The king not only be above suspicion but must also be perceived to be above the suspicion. The institutions are to set the rules of the game and in the absence of the rules there cannot be rule of law which is sine qua non for maintaining people’s faith in rule of law and in these institutions. It must also be kept in mind that the State is run by trust and credibility and not merely by the law-and-order machinery,” said Professor Ranjit Singh.

According to John Dayal, a noted social and human rights activist, “By delaying the announcement of the elections for the Gujarat Legislative Assembly while naming the dates for Himachal, the Election Commission has sown yet again its subservience to the Prime Minister’s Office and its deference to the ruling party. Political observers are unambiguous that the late announcement is to allow Prime Minister Narendra Modi, his party’s chief campaigner, to announce a slew of projects to coincide with the month end birthday celebrations of Sardar Vallabh bhai Patel. The BJP gets an additional fortnight for a free for all campaign without being bound by the mandatory electoral curbs under the election code.”

On the question of the explanation by the political parties as to how they will finance their poll promises, Dayal said, “The Election Commission has already invited criticism asking parties to explain how they will finance their poll promises, or freebies, in the assembly elections due this winter. Opposition parties, and one his predecessors, SY Qureshi, have cautioned him against a constitutional overreach in his proposal for parties to explain the financial implications of promises made in their poll manifestos. The commission has asked national and state parties for their views on a proforma being included in the Model Code of Conduct, requiring parties to explain how their promised welfare schemes would be funded if they were elected to power. The commission justifies it, saying it was in line with 2015 guidelines issued after the Supreme Court, that called for a “level playing field and credibility of promises.”

“The commission, if not the CEC personally, seems to be clearly toeing the line set out by Prime Minister Narendra Modi who has used the Hindi phrase “Revri batna”, a culture of sweets, to attack opposition parties which are promising to undo several of his policies that have cost the common man dearly. Modi claims promises made by the opposition are “very dangerous” for the country,” said Dayal.

Dr. Maskoor Ahmad Usmani, former President of AMU Students Union, while sharing his point of view on the role of the Election Commission, said, “The government’s totalitarian approach towards all autonomous institutions in India is a matter of serious concern for a democracy. EC, in this regard, is no exception. EC’s responsibility in conducting free and fair elections strengthens democratic structure. If there is breach in EC’s autonomy, this will lead towards a dictatorial regime. In order to save the democracy, there is a stern need to stand robust against such attitude of the incumbent dispensation.”