New Delhi: The Election Commission of India (ECI) and the West Bengal government seem to have reached an impasse over the five officials the former has accused of preparing voter lists with fake voters.
Earlier this month, the ECI had sent a letter to the state government, directing suspension and filing of FIRs against the five officials.
The ECI had called for suspension of Debottam Dutta Choudhury, ERO (Electoral Registration Officer) and Tathagata Mondal, (AERO) Assistant Electoral Registration Officer for the 137-Baruipur Purba Assembly Constituency, and Biplab Sarkar, ERO and Sudipta Das, AERO for the 206-Moyna Assembly Constituency. Additionally, it had also said that disciplinary proceedings be initiated against these officials, and FIRs be filed against them and casual data entry operator, Surojit Halder. The officials have been accused of failing to perform their duties, and of data breach by sharing their login credentials of the electoral database with unauthorised persons.
The letter was written to West Bengal Chief Secretary Manoj Pant, citing a report sent by the state Chief Electoral Officer, Manoj Agarwal, over the wrongful addition of the names in the electoral rolls by the EROs and AEROs of assembly constituency number 137 Baruipur and Purba district. However, in response, a day after the letter, Chief Minister Mamata Banerjee made it clear that she would not allow action against them.
“Under which law have you [the EC] sent notice and threatened to suspend [them] and said that an FIR should be registered? This will not happen. I won’t allow punishment for the officers,” Banerjee was quoted as saying. She also launched a direct attack at the ECI, accusing it of functioning like the “bonded labourers of the BJP”.
The state government had subsequently informed the ECI that it had removed two of the five officers from active election duty, but had not suspended them yet. It also said that initiating proceedings before a detailed enquiry against these officers “who have consistently demonstrated sincerity and competence may be a disproportionately harsh measure”. The ECI then summoned Pant to meet the commission Wednesday.
But can the ECI ask for officials to be suspended? What does the law say, and how have the courts viewed the matter? ThePrint explains.
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What the law says
Section 13CC of the Representation of People Act, 1950 says that the chief electoral officers, district election officers, electoral registration officers and others employed in connection with the preparation, revision and correction of the electoral rolls for all elections “shall be deemed to be on deputation to the Election Commission for the period during which they are so employed”.
The provision further says that such officers and staff shall, during this period, “be subject to the control, superintendence and discipline of the Election Commission”.
Similarly, Section 28A of Representation of People Act, 1951 says that the returning officer, assistant returning officer, presiding officer, polling officer and other officers designated by state governments for any election shall be “deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of such election”.
These officers, it says, during that period shall be “subject to the control, superintendence and discipline of the Election Commission”.
What ECI can do
Former secretary general of Lok Sabha and constitutional expert P.D.T. Achary points out that ECI is the authority which has been mandated by the Constitution to prepare the electoral roll.
“For this and for the conduct of elections, the ECI can ask for the services of officials from the state government, because after all, it has limited people on its staff. So the rest of the officials are all taken from state governments whenever elections are held. State governments have to give that assistance to the ECI,” he explains. These officials, he asserts, are under the control of the commission.
“We can say that they are under the disciplinary jurisdiction of the ECI. So if an officer of the state government who has been deputed to work under the ECI for that period for the purpose of conducting the elections commits some offence, then the ECI can certainly ask the government to take action against those people. That is the law,” Achary tells ThePrint.
He further points out that the commission can only recommend to the state government to take action against errant officials, who may have committed the dereliction of duty, and the state government has to comply with those recommendations. “If the state government does not bother about it, that is not what the law intends. The intention of the law is that ECI has the authority under the law to deal with employees who are working under it, even on deputation. If they commit a violation of the law, and if no action is taken by the state government, maybe for political reasons, the ECI will be left helpless. That is not what the law intends.”
However, Achary clarifies, the state government does have its own authority on the officials under it. He, therefore, suggests that the commission and the state government should attempt to arrive at a mutual decision, if the state government has serious reservations about the action to be taken against the officials.
“The ECI should certainly hear the state government and discuss it,” he says, adding that despite this, if there’s a total disagreement, the law doesn’t lay down any course of action for such a case where its recommendations are not accepted by state governments, and that the only option left for the ECI then would be to approach the courts.
What courts have said
The meaning of the word “discipline” has previously been a bone of contention with the ECI on one side, and the central government and state governments on the other.
Reforms by former Chief Election Commissioner T.N. Seshan, who is widely credited with reforming the Indian electoral system and processes, were at the centre of this dispute. When Seshan took over as CEC in 1990, he began recruiting large numbers of election officers from central and state governments for performing election duties.
While the ECI was of the view that it could take disciplinary action against all officers and staff performing election duties for any dereliction on their part, the central government had taken the stand in 1993 that the commission could only recommend disciplinary action against erring officers and not take action against them on its own. The state governments had also taken the same stance.
Things came to an impasse in 1993, when the Election Commission of India approached the Supreme Court. The ECI then arrived at a ‘settlement’ with the central government on the issue of disciplinary control of the officials. The states of Tripura, Maharashtra, Tamil Nadu, Andhra Pradesh and Mizoram also accepted these terms in totality. As for other states, the court order noted that they had some reservations with respect to a few terms.
What the ‘settlement’ said
Seshan took up the matter of disciplinary control over election officials with successive prime ministers in 1998, 1999 and 2000, arriving at a mutual settlement with the government.
This settlement said that the disciplinary functions of the ECI over officers, staff and police deputed to perform election duty shall include suspending any officer or official or police personnel for insubordination or dereliction of duty, as well as substituting any officer or official or police personnel by another such person, and returning the substituted individual to the cadre to which he belongs.
It also said that the ECI’s disciplinary functions shall extend to making recommendation to the competent authority for taking disciplinary action for any act of insubordination or dereliction of duty, while on election duty.
“Such recommendation shall be promptly acted upon by the disciplinary authority, and action taken will be communicated to the Election Commission, within a period of six months from the date of Election Commission’s recommendations,” the settlement further acknowledged. It said that the Government of India would advise the state governments that they too should follow these principles and decisions, since a large number of election officials are under their administrative control.
‘Shall be promptly acted on’
In an office memorandum issued in March 2008, the Department of Personnel and Training had also reiterated these terms of settlement, after noting that the ECI had observed that the governments in many cases do not initiate proceedings promptly against government servants on the commission’s recommendations.
Reiterating the settlement, the DoPT said, “The recommendations of the Election Commission made to the Competent Authority for taking disciplinary action for any act of insubordination or dereliction of duty while on duty shall be promptly acted upon by the disciplinary authority and action taken should be communicated to the Election Commission within a period of six months from the date of the Election Commission’s recommendations.”
In July 2008, the DoPT issued another communication, asserting that it shall be mandatory for disciplinary authorities to consult the ECI if the matter is proposed to be closed only on the basis of a written explanation given by officer concerned to enable the commission to provide necessary inputs to the disciplinary authorities before the authorities take a final decision.
In March 2009, the ECI had also shot a communication to all chief secretaries, directing that prior written permission of the commission is mandatory before suspending or initiating any disciplinary proceedings against officials connected with the conduct of elections.
(Edited by Mannat Chugh)
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