The poll panel's power & wisdom

By Era Sezhiyan

IN THE election to the Council of States from the Tamil Nadu Assembly, six candidates were elected unopposed, giving the AIADMK four members, and the TMC and the DMK one each. As the parties confined their nominations to their respective strength in the Assembly, the electoral process was smooth and uneventful but for an objection raised by the Speaker, Dr. K. Kalimuthu, about the appointment of Dr. Mrutunjay Sarangi as the Returning Officer. He is already the Chief Electoral Officer for Tamil Nadu. I wish to make it clear at the outset that I am not casting any reflection on the competence or credibility of Dr. Sarangi as an officer in the election machinery. Now that the election is over, I feel that we should consider objectively the objection from the Speaker.

The duties of the CEO are defined in Section 20 of the Representation of the People Act, 1951. ``Subject to the superintendence, direction and control of the Election Commission, the Chief Election Officer of each State shall supervise the conduct of all elections in the State under this Act.'' Regarding appointment of a Returning Officer for an election to the Rajya Sabha, Section 21 provides that ``the Election Commission shall, in consultation with the Government of the State, designate or nominate a returning officer who shall be an officer of Government or of a local authority.''

In this regard, it has been the normal practice that on recommendation of the State concerned, the Election Commission appoints the Secretary (or the Principal Secretary) of the Assembly as the Returning Officer. This is so as the MLAs alone constitute the electorate and the Assembly Secretary can identify them easily. Never has a person other than a Secretary of the Legislature been appointed Returning Officer in any State for Rajya Sabha elections.

For Presidential and Vice-Presidential elections, the law provides that the Election Commission shall appoint a Returning Officer in consultation with the Central Government. So far, the tradition has been to appoint the Secretary (or the Secretary- General) of the Lok Sabha and the Rajya Sabha alternatively.

Section 21 specifies that the returning officer should be ``an officer of Government or of a local authority''. A question may be raised as to why the State Government should be consulted in appointment of the Assembly Secretary, as the latter is an Officer of the Assembly Secretariat, not under the control of the State Government. The propriety of appointing a Secretary of Parliament or Assembly was gone into by the Supreme Court in the Pasupathi Nath case (AIR 1984 SC 399). In the election to the Rajya Sabha from Uttar Pradesh in 1980, the Assembly Secretary, Mr. S. P. Singh, was appointed the Returning Officer. An election petition contended that the election was void, as the Assembly Secretary, not being an officer of the State Government, was not qualified to be the Returning Officer. The Allahabad High Court accepted the plea and set aside the election as having been conducted by an unauthorised officer.

The Supreme Court, however, set aside the High Court decision, holding ``He (Secretary of the State Legislature) has to be treated as an officer of Government for the purpose of Section 21 of the Act also qualified for being appointed as the Returning Officer for an election held under the Act. It is not disputed that after the commencement of the Constitution, the Secretaries of the State Legislature almost as matter of rule are being appointed as Returning Officers for election to the Rajya Sabha and for election to the Legislative Councils of the States and Parliament thought it fit to amend suitably Section 21 of the Act.''

In the Handbook for Returning Officers - `For Elections to the Council of States and Legislature Councils' - the Election Commission has given instructions about appointment of polling officers in the election to the Rajya Sabha: ``Those polling officers should normally be drawn from the Secretariat of the Legislature.'' (Para 5.2, Reprint 1996.) This shows that appointment of the Polling Officers is based on the assumption that the Assembly Secretary will be the Returning Officer.

Dr. Kalimuthu has observed that as per the practice in the past, the Principal Secretary, Mr. C. S. Janakiraman, should have been appointed the Returning Officer. He presumed that the Election Commission might have been prompted not to appoint Mr. Janakiraman as he, after his retirement, was reappointed Principal Secretary on contract. It is understood that in Andhra Pradesh, Mr. C. Venkatesan, who was reappointed Special Secretary of the Assembly after four years of retirement, was appointed by the Election Commission as the Returning Officer in 1996. If so, appointment of Mr. Janakiraman should not have raised any problem. Even if the Election Commission was not prepared to consider Mr. Janakiraman, it could have appointed Mr. V. Rajaraman, who continues to be the Secretary of the Assembly, as the Returning Officer.

In the election machinery, the CEO occupies the top position at the State level as the Chief Election Commissioner at the national level. The CEO has to supervise all elections in the State and has the responsibility to guide and direct the returning officers and decide on issues raised by the other officers in the State. The Election Commission has no independent electoral machinery in the States. The officers to be appointed as CEO, District Officer, Returning Officer, Presiding Officer, Polling Officer etc. are necessarily to be drawn from the State Government. The Election Commission gets from the State Government a panel of names of senior officers and appoints one of them as the CEO. The head of the district administration - `Collector', `Deputy Commissioner', or `District Magistrate' - is normally appointed the DEO.

If there is confrontation between the State and the Election Commission in appointment of election officers, it will affect conduct of elections on the whole. In 1993, the West Bengal Government refused to spare the services of an officer appointed as CEO. The Election Commission appointed another officer who declined on health grounds. Thereafter, the Election Commission declined to make any appointment and the preparations for elections came to a grinding halt. Eventually, on a petition, the Calcutta High Court intervened to make the State Government agree to spare an officer on full-time basis.

The Election Commissioner, Mr. T. S. Krishnamurthy, told the press that there had been no ulterior motive in the appointment of the Returning Officer in Tamil Nadu. I fully accept his statement. There is no need or room for any biased motivation in this appointment. Still, the action of the Election Commission is inexplicable.

While giving its judicial decision, a Court makes public the reasons for its decision. Impartiality and transparency are the prime factors for judicial decisions. The Election Commission is a constitutional authority with quasi-judicial powers. If there had been any valid reasons for not accepting the State Government's recommendation and for departing from the well- established procedure, the Election Commission should have given the reasons. A small slip in the decision-making process may raise a huge controversy, as a small spark may cause a huge forest fry.

Already the Centre-State relationship is surcharged. Let it not be worsened. The Election Commission should not only act impartially but also appear to do so. It is true that the Election Commission has a reservoir of powers under Article 324. Having power is one thing and taking a sound judgment to use the power wisely is another thing. Edmund Burke argued in the British Parliament against the imprudent and inconsistent attitude of imperialistic powers towards the American Colonies. The orator said pithily. ``It is easy to give power, but it is difficult to give wisdom.''

The Election Commission has enormous powers, but it will be desirable if it has enough wisdom to use them properly.

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