Unfair move


In a functional democratic set up that is evolving with the participation of the people around the world, there cannot be permanent laws in response to transient trends, especially to create a power that is open to abuse. The Election Commission of India’s proposal to the Law Ministry recently that it be armed with the power to punish for contempt is an unwarranted and poorly thought-out response to some strident accusations of partisan functioning, mainly from political parties that had lost in the electoral arena. In fact, such proposal are fraught with dangers of abuse of authority and are not acceptable in a democratic system where people have every right to question the laws that should change with the passage of time. With democratic practices evolving over time, even the power to punish for contempt vested in the judiciary has come under question, with many wondering whether this relic of a bygone age should be retained or not. A debate has been going on this issue for the past many decades whether such laws should continue to be applicable or not. Even the highest court, empowered to act under the Contempt of Courts Act, 1971, is time and again advised to use it only when there is no other way. Against this backdrop, for a multi-member Election Commission, which enjoys a high degree of public confidence and a reputation for impartiality, to ask that it be empowered with the powers of a high court to punish both civil and criminal contempt is a travesty of our open and democratic system. Civil contempt pertains to wilful disobedience of court orders, and giving the ECI the power to enforce its orders may be an idea, which is worth debating. Above all, such powers will be very harmful to free speech and fair criticism if the ECI is given the power to punish for criminal contempt on grounds that something had ‘scandalised’ it or an attempt has been made to lower its authority – a vague and subjective provision that should have no place in contempt law. It is a matter of concern that the ECI appears to be preparing the ground to use its power to curtail free speech; its letter refers to some parties ‘taking advantage of the right to freedom of expression’ to question the conduct of elections. Instead of asking for such powers, the ECI, which is custodian of people’s faith and confidence in holding elections needs to explain its conduct if an allegation is levelled either by a political party or an electorate. It is worth mentioning that low polling in certain areas of the country has also questioned the conduct of elections by the ECI and urged to take remedial measures. Apart from the difference in the constitution of such institutions under the Constitution of India, there is a big difference between the judiciary and the Election Commission. The judges in the Supreme Court and High Courts have been guided by tradition of not responding publicly to their criticism. As a senior judge observed in 1968, they ‘cannot enter into public controversy’ every now and then due to stature they enjoyed in the democratic society. The Election Commission of India, on the other hand, responds robustly as and when allegations about the conduct of elections are made by the political parties. There is no reason to believe that public confidence in the ECI will be shaken or its superintendence, direction and control over the election process undermined by criticism, however tendentious or calumnious it may be. It is true that political parties have made unfair accusations and allegations about the conduct of elections, or more accurately, about the outcome of elections that went against them. Not stopping with scepticism of the claim that the electronic voting machines are invulnerable, some political parties have alleged ECI members are politically aligned to the ruling party at the centre. However, it should not be forgotten that reforms such as the introduction of a verifiable paper trail came about only because somebody voiced criticism and suspicion. At this stage, stopping criticism with the threat of punishing contempt will only do away with the feedback, which is very essential for making course corrections.