REWIND

Now Delhi, 7 March 2024

WHO IS TO FIX THE POLL DATE?

By Inder Jit

(Released on 23 October 1984) 

Speculation on the next Lok Sabha poll continues. Mrs Gandhi has stated more than once that the general election will be held "according to schedule". The Congress-I Working President, Mr Kamlapati Tripathi, has been more specific and largely confirmed what I wrote a fortnight back. The poll, he has indicated, will be held in the last week of December or in the first work of January. But the people at large are not satisfied. They want the precise dates and are unable to understand why Mrs Gandhi chooses to be vague and talks in parables. The reason is not far to see. Strictly, the poll dates are neither to be fixed by the Government nor announced by it -- contrary to a widespread but erroneous impression. The responsibility for both is wholly and exclusively that of the Election Commission, which is an independent statutory authority under the Constitution. The poll body may have consulted the Government in the past informally or formally. But it is not obliged to do so.

What precisely is the implication of Mrs Gandhi's remark that the poll will be held "according to schedule". Broadly, it implies a poll before the present Lok Sabha completes its five-year term on January 20, 1995. However, some experts draw attention to the fact that there is no provision in the Constitution which specifically requires a general election for the Lok Sabha to be held within six months of the dissolution of the House. True, six general elections have been held so far within six months. However, this has been so because of the good sense of the Prime Ministers and the Chief Election Commissioners -- and their willingness to accept the six-month period as an implication of Article 85 of the Constitution and another provision which stipulates that there shall be a Lok Sabha. Article 85 lays down: "The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit but six months shall not intervene between its last sitting in on session and the date appointed for its sitting in the next session."

This has been interpreted to mean that the new Lok Sabha must meet within six months of the last session of the dissolved House. Yet, according to some experts, the Article does not necessarily make it mandatory for the poll to be held within six months. The Article, they point out, does not talk of the old dissolved House and the new Lok Sabha. It refers only to two sessions of the House. This silence or ambiguity, they argue, could prove dangerous. The Article could be interpreted in a way as to leave the door wide open for unscrupulous leaders in power to enter into a conspiracy and postpone elections indefinitely with impunity and without violating the Constitution! In fact, some insiders among Parliamentarians recall that the January poll of 1980 might not have been held within six months of the dissolution of the Sixth Lok Sabha but for the "democratic and gentlemanly" approach adopted by Mr Charan Singh, then Prime Minister and the interpretation given to Article 85 by the Chief Election Commissioner, Mr S.L. Shakdher.

Some Lok Dal leaders, including Mr Raj Narain, wanted the elections postponed by month or so to “suit the convenience of the farmers”. But Mr Charan Singh strongly opposed the move as it would have delayed the poll beyond the six month period and even reprimanded them publicly. What is more, he left the timing of the poll for the new Lok Sabha appropriately to the Chief Election Commissioner. Mr Shakdher, for his part, firmly held that Parliament was a continuing body and the six-month period, therefore, applied not only to two sessions of the same House but also to the last session of the dissolved House and the first session of the new House, Undoubtedly, there is no guarantee that the precedents established so far would necessarily be followed. The Constitution contains a lacuna which could be exploited to delay a general election beyond six months. (In 1979, another loophole enabled Mr Charan Singh to head a Government for six months without facing the Lok Sabha even once!) But conventions are often more important than the written word.

Alas, ignorance persists even where the Constitution is clear. The Election Commission is a case in point. The founding fathers were clear that free and fair elections were the bedrock of democracy and, therefore, created 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 Legislatures of every State and of elections to the office of President and Vice- President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission)." The founding fathers also ensured the independence of the Commission by providing that "the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a judge of the Supreme Court." Further, they provided that "the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment."

The powers of the Election Commission in regard to three matters -- superintendence, direction and control of elections -- is absolute and cannot be questioned by anyone. (Not many remember that these three words were deliberately and advisedly picked by the founding fathers from Article 14 of the Government of India Act of 1935-- a key article designed to give the Secretary of State 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 legislatures. But the crucial point here is this: all such legislation is subject to the absolute power accorded to the Election Commission to conduct a free and fair poll, basic to a healthy democracy.

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 Chief Election Commissioner is empowered to legislate through "direction", implement the legislation through "superintendence" 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 of clerks of the state. The word embraces everyone under the umbrella of the Centre or the State Government, including the police and the army.

The former Chief Election Commissioner ordered a repoll in the by-election to the Lok Sabha from Garhwal in 1981 on the ground that outside police force had been inducted into the constituency without his knowledge. Mrs Gandhi made light of Mr Shakdher's emphasis on his right to be informed. But her criticism stemmed from inadequate grasp of the Constitution and the implications of the right to be informed. The right flows from the Constitution itself. How else does the Election Commission exercise its powers of superintendence, direction and control? Again, the 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, which makes the question-hour sacrosanct. Churchill, it may be recalled, 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: "Have you the right of information"? When Mountbatten replied yes, Churchill said: "Fine. Go ahead."

Interestingly, a demand has gone up in Britain for what the London Times describes as an "an independent organisation to oversee all aspects of elections from boundaries to broadcasting." Britain today is alone among the world's democracies which leaves politicians in charge of elections. More and more Britons now feel it is time that they established an Electoral Commission with independent membership "to supervise the electoral process on behalf of the voters and to remove temptation from the politicians." The Commission, it has been suggested, should be appointed by and responsible to Parliament, reporting annually on its work. In an article entitled "Keep Politics out of Polling", Mr Richard Holmes, Director of the all-party Campaign for Electoral Reform, states: "It is time we stopped treating elections as a branch of Government administration. Ministers should take off their referee's shirts, lay down their whistles and become bona fide players in the electoral game."

In the final analysis, our Election Commission is expected to function independently and impartially and is adequately empowered to do so honourably. It is for the Chief Election Commission, Mr R.K. Trivedi and him alone to decide on the dates for the next poll and announce them. It is neither fair nor proper for him to abdicate his responsibility and leave it to the Government to indicate its preference or convenience. As I stated earlier, the Chief Election Commissioner could informally sound the Government leaders or, for that matter, also the Opposition leaders before finally making up his mind. However, he is not obliged to do so. In fact, Mr Shakdher picked January 3 and 6 for the 1980 poll entirely on his own. There was no consultation with Mr Charan Singh or any other government leader. Mr Trivedi should, likewise, make up his mind about the precise timing of the poll and take the country into confidence. Barely three months are now left for the present Lok Sabha to complete five years. The people are entitled to know the poll dates. An announcement is overdue.--INFA

(Copyright, India News and Feature Alliance)