BackThe Election Commission crosses a boundary
Non-elected institutions have to appreciate the limits of their mandate
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The Election Commission (EC), along with the Supreme Court and the Comptroller and Auditor General of India (CAG), forms a triad of institutions that has done considerable service to the maintenance of democracy in India. The Commission’s enforcement of the model code of conduct ahead of assembly and parliamentary elections is the sole roadblock that prevents governments from reaping unfair advantage.
Like any other institution that is the product of human ingenuity and creativity, the EC, too, is liable to make errors, especially if it moves away from the limited area that defines its expertise: the conduct of free and fair elections. In the last 10 days, it has taken a controversial decision—ordering the Union government not to notify increased natural gas prices for the coming financial year. It is deliberating another one: the issuing of new bank permits by the Reserve Bank of India (RBI).
In both instances, the EC had no role to play. In the case of gas pricing, it issued a one paragraph order on 24 March ordering the government not to notify the increase in natural gas prices. The order did not specify the reasons why the EC thought the notification should be postponed except that the case was also being heard in the Supreme Court. Were it not for the fact that virtually all chief election commissioners, including the current one V.S. Sampath, are civil servants of distinction, one could have said that the sheer controversy around the case forced the EC’s hand.
It is no secret that gas pricing has been controversial and does merit careful scrutiny. But, is the EC justified in raising objections without giving any reasons?
The other case, involving the issuing of bank licences, is even more muddled. On Thursday, RBI governor Raghuram Rajansaid the matter had been referred to the Commission as a matter of abundant caution. More than caution, this raises more questions. As election commissioner H.S. Brahma said, “Our concern is simple, if you have done your job properly...if they are very confident about their rules and regulations, why should they refer to us? Point is that, if they have done their job thoroughly, honestly, diligently, they should not have referred."
So, from a simple case of an over-cautious central bank governor to an Election Commissioner sensing something wrong, the matter has taken an entirely different complexion. The EC is expected to rule on the bank licences issue on Monday.
In both cases, it is quite out of line.
From the Commission’s perspective, a potential code of conduct violation has to answer one question: does a policy action influence voter behaviour and the outcome of voting? In simpler matters such as candidates distributing cash to their constituents, the answer is clear and the issue is one of merely assessing the evidence. Where complex policy measures are involved such as issuing of bank licences and pricing of natural gas, no simple tests can be devised to answer the question raised above.
For example, common sense dictates that the government can potentially lose votes by increasing gas prices just weeks before the general election. Conspiracy theorists can say that matters are more complicated as the government and the ruling party could have possibly been bribed to issue a notification. But this is complete speculation and the EC has no way to probe the matter and it is not its task to do so.
Different institutions inquire into different aspects of government malfeasance. The apex court, by precedent, takes note of these matters once the policy has been framed or has been implemented or both. Similarly, the CAG evaluates the potential costs and losses much after the policy action. There is a good reason why this is so. For one, facts are abundantly clear after the policy step; for another, the consequences, too, become apparent only later. The courts and the auditor step in afterwards because their methods permit them to investigate the issues later and not before the implementation of policy. They are not equipped to do so beforehand as they lack expertise and training to do so.
The EC is in an even weaker position from this perspective. Of the three key non-elected institutions, perhaps it is the one whose mandate is the most severely restricted and defined. It needs to appreciate this limitation well.
Should EC have intervened in the gas pricing issue? Tell us at views@livemint.com
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