Electoral Supervision

Editorial

The Electoral Supervisory Commission met last Friday to take cognizance of a request by ‘Rezistans ek Alternativ’ (ReA) made in a letter addressed to the Electoral Commissioner on 11 January 2021, wherein ReA referred to ‘certain information in the public domain’. It called on the Electoral Commissioner (EC) and the Electoral Supervision Commission (ESC) to carry out an investigation and to determine whether any ‘illegal practice’has been committed by any candidates in the last general elections, which might warrant a prosecution for an offence under the Representation of the People Act.

The Electoral Supervisory Commission recalls, in its response to ReA, as made public in a communiqué, that the functions of the Electoral Supervisory Commission/Electoral Commissioner, as set out in section 41 of the Constitution, do not extend to carrying out investigations into a suspected criminal offence of illegal practice nor to determine whether the facts might warrant a prosecution under the Act. In light of that limitation, the ESC has invited ReA, if it so wishes, to report such matters to the appropriate law enforcement and investigatory authorities, if it is of the opinion that the information relating to alleged electoral irregularities may have resulted in any breach of the provisions of the Representation of the People Act. The ESC adds that it has been informed of ‘the reply made by the Electoral Commissioner to the letter of Rezistans ek Alternativ, and of his decision to refer the matter to the Commissioner of Police, for any investigation the latter considers necessary into any suspected electoral offence. The Commission is in agreement with this decision of the Electoral Commissioner’.

The ESC also recalls in its response to ReA its representations regarding electoral expenses made to the Sachs Commission on Constitutional Reform as far back as 2001. It adds that the Sachs Commission’s recommendations, contained in paragraph 112 of its Report, that sought, amongst others, to empower the ESC to apply to the Court seeking annulment of the election of a candidate who has not adhered to the prescribed ceilings, have not been implemented.

The ESC also draws attention to the recommendations of the Select Committee on the Funding of Political Parties, in its report dated October 2004, which called for the revamping the Electoral Supervisory Commission, with a view to

– “receiving and making available for public inspection, disclosable donations, and annual accounts reported to the Electoral Supervisory Commission by registered political parties;

– “investigating the financial affairs of the political parties to ensure compliance with disclosure rules on party funding; and

– “receiving, scrutinizing and investigating accounts of general election expenditure by registered political parties and third parties.”

 These recommendations have also not been implemented. This should not come as a surprise. Objectively, it is generally known that most parties that have been in power have tended to have recourse to different forms of abuse to defeat their adversaries, as past electoral history would indicate. This is unfair and a heavy handicap for individual candidates or opposing parties which consequently need more resources to canvass their views. Several ruling alliances have in the past left no stone unturned to snatch victory from the jaws of defeat which, in their heart of hearts, they knew was certain, because of the numberless cases of protests, critical law and order situations, allegations of corruption at the highest rung of the ladder, and their failures to refrain from peopling the government with party loyalists, transfuges, ill-qualified advisers at the highest level and relatives. It is no wonder that there has been no attempt to reform the system and to empower the institutions that would have allowed them to perform the role for which they are meant – when the status quo clearly serves their interest.

At one time, the Indian Electoral Commission took the bull by the horns because it was then headed by a man who meant business. Politicians used to winning elections by capturing polling booths and by recourse to other corrupt practices till then had to reckon with this new force and there was a complete changeover in India on how elections would be conducted henceforth. Not only did the Electoral Commissioner TN Seshan get the compulsory use of the ID cards for voting established, the system even embarked on electronic voting later. It was an institution that knew what its mission was and was empowered to put matters right after decades of sloth and generalised anarchy.

More than ever, what with the delays and legal hurdles faced by unelected candidates who feel that there have been voting irregularities — as evidenced by the cases entered after the last general election pending before the courts – bringing about the required reforms in our laws and/or Constitution to deal with these emerging challenges has become a matter of urgency. There is a restive generation coming up that will not be prepared to accept the status quo, which also results in contesting parties being shunted or shuttled from one institution to another thus further delaying determination of their cases – and of justice, which is therefore justice denied.

For how long? Indefinitely, as per existing procedures. Time to leap to a more effective and performing level that the contingencies are clamouring for.

* Published in print edition on 19 January 2021