Poll rule tweak is in keeping with stonewalling by the ECI over the past few years
ADDRESSING a press conference on March 13 this year, Chief Election Commissioner (CEC) Rajiv Kumar asserted: “Hamare teen hee pillar hain — disclosure, disclosure, disclosure… Disclose everything to the public, to the voter, the voter have (sic) right to know everything what we are doing, how we are doing…”
Nearly nine months later, a civil writ petition titled Mehmood Pracha vs Election Commission of India and others was decided by the Punjab and Haryana High Court on December 9. The petitioner had sought directions to the respondents to supply videography as well as CCTV footage and copies of Form 17-C Parts I and II pertaining to the 2024 Haryana Assembly elections. The HC ordered the respondents to provide copies of the requisite documents under provisions of the Conduct of Election Rules, 1961, within six weeks of submission of an application by the petitioner.
Even as the Winter Session of Parliament came to a bitter end, the Union Ministry of Law and Justice (Legislative Department) issued a notification on December 20, saying that “In the Conduct of Elections Rules, 1961, in Rule 93, sub-rule (2), clause (a), after the word ‘papers’, the words ‘as specified in these rules’ shall be inserted.”
Originally, Rule 93(2)(a) read: “Production and inspection of election papers — Subject to such conditions and to the payment of such fee as the Election Commission may direct,—
(a) all other papers relating to the election shall be open to public inspection; …”
This rule, after the December 20 notification, will read: “…all other papers, as specified in these rules, relating to the election shall be open to public inspection; …”
In the absence of any ‘official’ and authentic information about the real reason(s) behind the issuance of the notification, one can only speculate. Given the temporal relationship between the developments of December 9 and 20, it can be speculated that the first may well have caused the second. In simple terms, the notification might well have been issued to block the action ordered by the high court. In even simpler terms, the government — it is important to remember that the notification has been, and can be, issued only by the Government of India — does not want that videography as well as CCTV footage and copies of Form 17-C Parts I and II pertaining to the 2024 Haryana Assembly elections and all future elections should be accessible to the people at large (notably, the ECI does not have the power to amend the Conduct of Election Rules).
It is important to note that the ECI not only seems to but actually agrees with the government in this regard. The notification itself makes it abundantly clear because it says, “In exercise of the powers conferred by Section 169 of the Representation of the People Act, 1951…, the Central Government, after consulting the Election Commission of India, hereby makes the following rules further to amend the Conduct of Elections Rules, 1961.”
If the above has any merit, a few questions arise. The first and most critical is about the CEC’s statement quoted at the beginning of this piece. Does the CEC, as an independent constitutional authority responsible for the conduct of free and fair elections, agree with the government that information should be withheld from voters, or does he stand by that statement? As an authority accountable to the people of India through the Constitution, he owes it to the people and to his constitutional position to clarify this matter. If this clarification does not come publicly, the people will have to make up their own minds about “saying vs doing”.
The notification also raises a number of other questions, such as what happens if a citizen asks for this information under the Right to Information Act? Can the Central Government override a law passed unanimously by Parliament, merely by way of a gazette notification? This would amount to a case of the government of the day defying Parliament.
The legal question is about the fate of the request made by the petitioner. The request for videography & CCTV footage and copies of Form 17-C Parts I and II pertaining to the Haryana elections was obviously made before December 9, when the high court judgment was delivered.
Would a notification issued by the Union Government overrule a prior decision of a constitutional court? The notification clarifies that the amendment “shall come into force on the date of publication in the Official Gazette”, which is December 20. Based on this, the Haryana-specific information would have to be given to the petitioner.
The entire saga is in keeping with the stonewalling that the ECI has been engaged in over the past few years. Now, it seems amply clear that the so-called independent constitutional authority is not so independent after all.
And that is not good news for democracy — or whatever is left of it.