REWIND
New Delhi, 3 November 2022
CEC Can Revoke Poll Transfers
By Inder Jit
(Released on 2 April 1991)
The Chief Election Commissioner,
T.N. Seshan, and his colleagues in the Commission deserve a hand. They have
done well to probe the poll in Bihar, Uttar Pradesh, Haryana, Madhya Pradesh,
Andhra Padesh and Tripura. The Bihar Chief Minister, Mr Laloo Prasad Yadav and
others are welcome to believe that they have outsmarted the Election Commission
by posting pliable or obliging officials in areas where they can be helpful in
the forthcoming poll. Many of these officials are reported to have been shifted
even on a holiday without any qualms of conscience. Bihar transferred as many
as 75 officers on March 24. Uttar Pradesh moved 25 IAS officers the same Sunday
and another 10 officers early on Monday. However, the CEC is right when he
asserts that he has “equate powers" to deal with such transfers. True, the
Commission has no direct statutory power to stop or revoke transfer orders.
Nevertheless, it enjoys vital and wide discretionary powers under the
Constitution to ensure a free and fair poll.
To begin from the beginning. The
Founding Fathers of the Constitution were clear that free and fair elections
were the bed-rock of any democracy. They then went ahead to create an
independent Election Commission which would function without fear or favour.
Accordingly, Article 324 (1) of the Constitution provides: “The
superintendence, direction and control of the preparation of the electoral rolls
for, and the conduct of, all elections to Parliament and to the Legislature of
every State and of elections to the offices of President and Vice-President
held under the Constitution shall be vested in a Commission (referred to in
this Constitution as the Election Commission.)” But all this would have been
meaningless without ensuring the independence of the CEC. The Founding Fathers,
therefore, also provided under the same Article that “the Chief Election
Commissioner shall not be removed from his office except in like manner and in
like grounds of a judge of the Supreme Court.” Further, “the conditions of
service of the Chief Election Commissioner shall not be varied to his
disadvantage after his appointment”.
Importantly, the powers of the Election
Commission in regard to three matters -- superintendence, direction and control
-- are absolute and cannot be questioned by anyone. Not many remember that
these three key words were deliberately and advisedly picked up by the Founding
Fathers from Article 14 of the Government of India Act of 1935 -- a crucial
article designed to give the Secretary of State for India absolute power to
supervise, direct and control the functioning of the Governor General of India,
who was authorised even to act "in his discretion" and "exercise
his individual judgment". In fact, the Supreme Court has already held that
the power of the Commission in the superintendence, direction and control is
unfettered and over-riding. Parliament has, no doubt, been empowered to legislate
on certain aspects of the elections, such as making provision with respect to
elections to the legislatures. But the crucial point here is that all such
legislation is subject to the absolute power accorded to the Election
Commission to conduct a free and fair poll.
In practice, the three words -
superintendence, direction and control --- also give the Election Commission
two vital far-reaching rights: to virtually legislate and to be informed. The
CEC is empowered to implement the legislation through “superintendence",
legislate in effect through "direction" and interpret the legislation
through “control". Every little detail in regard to the conduct of
elections comes under his overall control, direction and superintendence through
section (6) of Article 324 of the Constitution which provides: “The President,
or the Governor of a State, shall, when so requested by the Election
Commission, make available to the Election Commission or to a Regional
Commissioner such staff as may be necessary for the discharge of the
functions conferred on the Election Commission by clause (1)". (Italics
mine) The word staff does not mean merely officials or clerks of the
State, contrary to an interpretation by some who should know better. The word
embraces everyone under the umbrella of either the Centre or the State
Government, including the civil services, police and the army.
Not just that. One other important
authority flows from the CEC's powers of "superintendence, direction and
control" -- the basic right of information. This may cause some eyebrows
to go up. But the question is: Can the CEC exercise his powers of “superintendence,
direction and control" without the right to be informed? Again, ne right
to be informed carries the right to question and, by implication, to control
and direct, as in the case of Parliament's sovereign right to know through its Question
Hour. Churchill is said to have asked Lord Mountbatten only one question when
the latter sought his advice about whether or not he should accept Governor-Generalship
of India following independence: "Will you have the right of
information"? When Mountbatten replied in the affirmative, Churchill said:
“Fine. Go ahead". India's Presidents continue to enjoy the same right.
Regrettably, however, it has seldom been enforced. Acting President B.D. Jatti exercised the right in
1978 and created a sensation. Remember, the Janata Government then wanted him
to promulgate an ordinance to dismiss nine State Governments. He queried: Why?
Unknown to most people, the CEC has
exercised the right to be informed all along -- as also his powers of
superintendence, direction and control. Prior to the 1980 general election, for
instance, Mr. S.L. Shakdher, one of India's great CECs, established the
practice of convening meetings of all the Chief Secretaries and L-Gs of Police
in the States for ensuring a free and fair poll. Earlier, in the historic
parliamentary by-election from Chikamagalur in 1978, Mr Shakdher ordered the
State Government to withdraw some of the police force in the constituency
following allegations that deployment of excessive force was likely to vitiate
the poll. Thereafter, he got the CRP and BSF units posted in Chikamagalur when
the Opposition represented that the local force under the Congress Government
was "biased" in favour of Indira Gandhi. Significantly, Mr Shakdher
then ruled that the police force in a constituency should be adequate to ensure
a fair poll -- neither too much, nor too little. Again during election time,
namely from the day a poll is ordered to the day it concludes, the Commission
is kept fully informed in regard to the law and order situation by the States.
In mid-1981, Mr Shakdher created a
nationwide sensation by boldly exercising his powers of "superintendence,
direction and control" and his right of information to countermand a key
by-election to the Lok Sabha from Garhwal. The reason? The poll, he ruled, had
been vitiated by the induction of police forces of Haryana, Punjab and Himachal
into the Constituency without the prior knowledge of the Commission. Not a few
then surmised that the CEC’s order was intended to help Indira Gandhi. It was
even argued that had a repoll been ordered only in 56 polling booths, Mr. H.N.
Bahuguna, who had fallen out with the then Prime Minister, would have won. Yet
the criticism stemmed from ignorance of the Constitution and the CEC’s inherent
right to be informed. The UP Government of the time slipped up badly,
notwithstanding its right to handle law and order and, if necessary, to induct
police forces from outside. Its request for additional police force was not
made to the Centre. Instead, it was made directly to Haryana, Punjab and
Himachal!
An angry Indira Gandhi justified the
induction of the Haryana, Punjab and Himachal police on the ground that outside
police forces had been used in the past for poll duty. She was undoubtedly
right in what she stated. But, to set the record straight, outside forces were
inducted only with the prior knowledge of the Commission. In the Garhwal case,
the outside forces, from the Commission’s viewpoint, were inducted
“surreptitiously”. Everything else was secondary --- booth capturing,
corruption and intimidation. That the Haryana police indulged in route marches
to show who was in control was not viewed as being material to the fundamental
issue: whether the induction of outside forces had vitiated the poll. Mr.
Shakdher’s courageous decision at the time halted a new and dangerous trend.
Had he not acted boldly, West Bengal would, for instance, have been justified
in the years that followed in inducting police forces from friendly
Marxist-ruled States of Kerala and Tripura. The CEC’s ruling thus not only
upheld the independence of the Commission but also ensured a poll without fear.
Where do we go from here? Mr Seshan,
as I said at the outset, has done well to have sought explanations from the
Chief Secretaries of UP, Bihar and other States on the poll transfers. The
Commission must be clear about its facts and not commit a faux pas like
Tripura's former Marxist Chief Minister, Mr Nripen Chakrovarty. (The former CM
complained to the Commission that Mr Shyamal Ghosh, Chief Secretary-cum-Chief
Electoral Officer in Tripura had been asked by the Congress -I State Government
to proceed on long leave. But, as pointed out by the Deputy Chief Election
Commissioner, Mr R.P. Bhalla, Mr Ghosh was not the Chief Electoral Officer at
that time. In case a free and fair poll has been vitiated in UP, Bihar and
elsewhere, the transfers must be revoked. Mr Seshan needs to act with the
courage shown in his time by Mr Shakaher, remembering that the poll was in
process the very day the President dissolved the Lok Sabha and directed that the
new House be constituted by June 5. It is clearly time to stem the rot in regard
to another perilous tendency in the interest of a free and fair poll. --- INFA
(Copyright, India News & Feature
Alliance)
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