Author: Arvind Lavakare
Publication: Rediff on Net
Date: February 13, 2003
URL: http://www.rediff.com/news/2003/feb/13arvind.htm
James Michael Lyngdoh has been at
it again: acidic and allergic to BJP's Hindutva. He would be entirely at
liberty to wear that antipathy on his sleeves but for the fact, alas, that
he is the country's Chief Election Commissioner who must keep his personal
ideology to himself instead of advertising it as he seems to revel in doing.
But even the black eye the Gujarat voter gave him last year hasn't compelled
him to turn a new leaf for the New Year. He remains opinionated and overbearing.
Thus, on January 8, a PTI dispatch
reported him making a statement when in Shimla to make a personal assessment
as to whether the political environment was conducive to holding the scheduled
assembly election in Himachal Pradesh.
That day he first described HP as
an orderly state where people are well behaved. Then came the antagonism
and the allergy. 'Himachal must ensure,' he said, 'that people should not
allow outsiders from other states to communalise the election campaign...'
He was responding to queries regarding
the possibility of the 'Hindutva' card being played by the Bharatiya Janata
Party.
Some had thought the CEC's oral
assault on the Vadodara collector and other officials in Gujarat before
the state assembly election there and his unwillingness to conduct the
poll within the time-limit desired by Narendra Modi's BJP government were
only aberrations of righteous indignation at the post-Godhra arson, looting
and killings. But, now in Shimla, his rage at Hindutva had been truly exposed.
No authority in our democracy has the right to prohibit inter-state movement
of its citizens. Not even Bal Thackeray can do that.
Lyngdoh didn't stop with that Shimla.
Even as campaigning for the HP election was picking up with certain non-government
organisations putting up hoardings about the progress achieved by the BJP-ruled
state, the CEC ordered the removal of those hoardings. Among those hoardings
was one which displayed a statement by Chief Minister Prem Kumar Dhumal
of April 3, 1998 to the effect that his government was committed to harnessing
expeditiously HP's immense hydel potential. How this statement violates
any code of conduct anywhere in the world can be revealed only by James
Michael Lyngdoh.
Recall how the CEC thwarted the
Modi government's attempt at early elections. The government had argued
that the board examinations for schools across the state had passed off
without communal incident; so it was with the Mahashivratri and Muharram
festivals and the return of Muslims from their Haj pilgrimage. Hence, Modi
argued, the atmosphere was not at all vitiated against a timely poll. The
CEC was unmoved; in fact, he issued a 61-paragraph report on August 16,
2002 making out a case for the imposition of President's Rule in Gujarat.
But it was the same CEC that had,
in the same month, believed Jammu and Kashmir to be conducive for an electoral
exercise, never mind the unending acts of terrorist killings and bombings
and IEDs. The CEC undertook two visits to decide against holding elections
in Gujarat before the expiry of six months since the last assembly session
was adjourned, but he didn't make a single on-the-spot assessment prior
to announcing the election schedule of Nagaland, Meghalaya and Tripura
-- three states long-infested by strife and violent tribal unrest.
Why, when the code of conduct came
into effect in Meghalaya, he even refused to take any action against a
minister of the ruling government there who violated the code by inaugurating
a school building in his constituency.
This tale of the CEC's bias reached
a ridiculous height in Kolkata on February 1 when he met MPs, MLAs and
leaders of political parties. According to a PTI report published in The
Free Press Journal, Mumbai, on the next day, he attacked the BJP's style
of electioneering in Gujarat, saying it came out with 'new tricks' in communal
campaigning.
Reporting on the same meeting, The
Indian Express, Mumbai, of February 2 told us about the CEC saying that
such campaigning would lead to the erosion of the country's democratic
process. The newspaper quoted him as saying, 'Democracy seems to be diminishing
in the country. If there is no democracy, there is no need for an Election
Commission. But I hope... democracy survives.'
It is ironic the man who moans about
a diminishing democracy forgot he himself publicly charged J&K's National
Conference of attempting to sabotage the state assembly polling without
giving any proof of his allegation. It is ironic that someone who revels
in talking down others should moan about democracy
Some issues arise in this highly
disturbing scenario surrounding the nation's Election Commission.
The first, and a relatively minor
one, is the role of the two election commissioners who, with the CEC, constitute
the Election Commission that, under Article 324(1) of the Constitution
of India, is entrusted with the 'superintendence, direction and control
of the electoral rolls for, and the conduct of, all elections to Parliament
and the Legislatures of every State...'
How come these two election commissioners
always toe the CEC's line? How come there never appear to be differences
of opinion among the three? It is difficult to accept that in a democracy
as vibrant as India's three men can concur on the banning of innocuous
private hoardings in Himachal Pradesh, on postponing Gujarat elections
but having them as scheduled in the Pak-terrorised states of J&K, Meghalaya,
Nagaland and Tripura, and on telling a state's citizens from banning entry
to outsiders.
The truth about these 'unanimous'
but inexplicable decisions of the EC has unfortunately not been told even
in gossip columns of our press. The suspicion is the CEC simply throws
his weight around and his two colleagues fall in line or choose to remain
silent.
The reason for that may well lie
in clause (5) of Article 324. Under that clause the CEC can be removed
from office only through the manner prescribed for removing a Supreme Court
judge; parliamentary impeachment stipulated in Article 123(4), but an election
commissioner or a regional commissioner is denied such protection and can
be removed from office at the CEC's mere recommendation. Thus, only the
bold and the bountiful EC will dare oppose his boss, make his dissent public
and risk losing his comfy perks prematurely.
Till such ECs come, we the people
will have to suffer the ignored warning H V Kamath gave to the Constituent
Assembly on June 16, 1949. Kamath had then said, 'I feel that most of the
time of the election commissioners will be used in doing what I may call
khushamat, to keep the Chief Election Commissioner in good humour because
it will be only natural, human nature being what it is, lest the Chief
Election Commissioner should give a bad chit.' (http://parliamentofindia.nic.in/debates/
vol8p23b.htm)
The second issue is that while security
of tenure constitutionally granted to the CEC is similar to that of a Supreme
Court judge, his appointment is made differently. While every Supreme Court
judge has to be appointed with the consensus of a collegium of four seniormost
judges of that court, no such procedure exists for the appointment of the
CEC. And, as pointed out by Pandit Hirday Nath Kunzru during the Constituent
Assembly debate on what finally became Article 324, 'This Article does
not lay down the qualifications of persons who are chosen as Chief Election
Commissioner or as election commissioner.' (http:// parliamentofindia.nic.in/debates/vol8p23a.htm).
Consider James Lyngdoh's promotion
from the post of EC to CEC. Unknown to many, a Punjab and Haryana high
court judgment in May 2000 reprimanded Lyngdoh for forcing Haryana Chief
Minister Om Parkash Chautala out of his native town under the threat of
drastic action without assigning any reason.
In that pronouncement, Justice Chalapati
came down heavily on the then EC, J M Lyngdoh, saying his action of verbally
directing the Haryana chief minister to leave the Bhiwani parliamentary
constituency during the September 1999 general election and preventing
him from casting his vote was 'not warranted under law.' Justice Chalapati
added that, 'The action of Mr Lyngdoh giving oral instructions deserves
condemnation and is to be deprecated. The Election Commission is not supposed
to act as a super authority. It has to function within the limits of law.
No one in the country, however big they may be, can be above law.' (The
Pioneer, New Delhi, August 23, 2002).
How, then, was that brusque record
overlooked when the NDA government elevated James Lyngdoh to the position
of CEC?
In the light of the extreme Constitutional
protection given to the CEC to ensure his independence from executive influence,
the over zealousness for 'free and fair' elections exhibited by the CECs
from T N Seshan onwards seems to have lulled the nation into forgetting
the sane advice given by Naziruddin Ahmad in the Constituent Assembly.
He had advocated that 'the first thing we should do is to control the conduct
of elections, not to interfere with the policies and the activities of
the different parties, but just to ensure impartiality and efficiency in
the conduct of elections.' (http://parliamentofindia.nic.in/debates/vol8p23a.htm).
Indeed, K M Munshi's comment during
that Constituent Assembly debate should now sound an alarm bell in all
political parties who have tended to play second fiddle to the CEC. Said
Mr Munshi, 'It is not possible nor advisable to have a kingdom within a
kingdom, so that the election matters could be left to an entirely independent
organ of the government. A machinery, so independent, cannot be allowed
to sit as a kind of super- government to decide which government shall
come into power.' (http:// parliamentofindia.nic.in/debates/vol8p23a.htm).
Time seems to have come when our
Parliament must seriously review the matter and take measures to ensure
that what the nation gets is a sober and sagacious CEC, not a self-possessed
sort of CEO.
