A model code for the EC?

There is no law against a former chief election commissioner exercising a right possessed by any other adult Indian. But can anyone claim that it is actually in keeping with the spirit, as opposed to the strict letter, of the law? If a former member of the Election Commission exposes a liking for a particular political group, does it not expose all his successors to charges of having the same prejudice ? And then wouldn’t the people’s faith in the electoral process begin to get undermined slowly?

The Election Commission is probably one of the few institutions of the state which still commands universal respect. Perhaps only the judiciary is equally revered. So the only thing worse than a former chief election commissioner jumping into the fray at some party’s behest would be a sitting judge of the Supreme Court or a High Court becoming a candidate overnight.

Oh yes, this has happened, in case you didn’t know it. Surprisingly, it began with no less a person than the head of the whole judiciary, the chief justice of India himself. In 1967, Chief Justice Subba Rao agreed to become the Opposition’s candidate against Dr Zakir Hussain, the man backed by the Congress. (The Communists were at the forefront of the move to draft the chief justice.) Once the head of the profession had demonstrated an Achilles heel it was no surprise that others among his brethren would follow suit.

Thus it was that we had the spectacle of Justice Islam, a sitting judge of the Supreme Court, accepting a Congress ticket to stand from a constituency in Assam. (Justice Subba Rao had at least had the grace to contest as an independent candidate.) And rumour has it that a sitting judge from a high court is all set to vacate his seat in order to contest on a Bharatiya Janata Party ticket (from Orissa if rumour has it right). I am sure I am not the only person who would be distressed if this chamber gossip turned out to be right.

The judiciary does, in fact, observe some restrictions. Nobody who has served on the Supreme Court is permitted to appear as a lawyer in any Indian court. The rationale is that he or she would overawe the presiding officers (who are sure to be his or her juniors in the profession). The professional exercise which is permissible is chamber practice — and of course the opinion of a former Supreme Court justice carries weight.

There are also certain restrictions on another category of public servants, namely the bureaucracy. Retired government servants may not take up a job for up to two years after they leave office except with the specific permission of the Government of India. This is done to prevent any undue favours, some quid pro quo, being granted in their last months on the job.

I suppose a member of the Election Commission is at least as well placed to grant a favour as a judge or a bureaucrat. It does not have to be a favour granted to a party, it could just as well be a decision that goes against an opponent. Let us say, for instance, that a split is engineered in a rival party, which results in both factions laying claim to the party’s assets — such as the symbol. Can you imagine the havoc it would cause if your foes had to scramble for a new logo on the eve of polling because of an adverse opinion from an Election Commissioner? It has never happened, but who is to say that such a scenario shall never come to be?

Some such fear is why retired judges and retired bureaucrats must submit to certain restrictions. However, there is really no restraint on members of the Election Commission if only because nobody thought one would be necessary. After all, it was unthinkable for any election commissioner — leave alone the chief election commissioner himself — to participate in the polls. (I remember that many of them would refuse even to vote lest it be misconstrued as supporting a particular political platform).

We have certainly come a long way since the days of Sukumar Sen, the first chief election commissioner. Of the three most recently retired chief election commissioners, two have stood for elections and the third will be most noted for describing all politicians as a “cancer”. I am sorry to have to say this but doesn’t all this serve to weaken the average Indian’s faith in the impartiality of the country’s elections?

There is, as we all know, a rigorously enforced Model Code of Conduct for politicians. Perhaps there should be another for election commissioners — retired or still in the chair as well!