The 2019 Lok Sabha elections will go down in history as one that gravely damaged the pristine reputation of India’s Election Commission. The latest controversy to hit the EC is the protest by Election Commissioner Ashok Lavasa, who wants his dissenting opinions on clean chits to Prime Minister Narendra Modi and BJP president Amit Shah to be put on record and made public.
The silver lining here is that there will now be public debate on the need for reforms in the Election Commission. And to tackle dissent, the EC may not look any further than the Supreme Court, whose judges have delivered landmark dissenting judgments.
Dissent in Election Commission
Ashok Lavasa has recused himself from all EC’s meetings until his demand that the poll body make his dissenting opinion public is met. Chief Election Commissioner Sunil Arora has downplayed Lavasa’s three letters and recusal by saying that election commissioners are not “expected to be clones of each other”. He is right: commissioners should agree to disagree. What he is wrong about though is the need for secrecy. Not only is it correct for disagreement to be allowed, it is also correct for the same to be made part of public records.
The EC’s legal division is of the view that decisions related to model code of conduct are executive in nature, and not quasi-judicial, for dissent to be separately recorded. Ashok Lavasa argues that as per Article 324 of the Constitution, from where the EC draws its powers, principles of natural justice must apply on EC proceedings.
Two former CECs have also weighed in, saying that dissent has to be noted in files and the complainant has a right to know about it. They have also argued that just like it is in the case of the Supreme Court, voices of dissent in the Election Commission’s orders too should be uploaded on its website.
“Not only must justice be done, it must also be seen to be done.”
Lessons from Supreme Court
The Election Commission, which was constituted as a one-member body in 1950, became a multi-member panel in 1989 under then Prime Minister Rajiv Gandhi, who sought to strengthen the commission by making room for dissent.
Members of the Election Commission enjoy the rank and status similar to those of Supreme Court judges. The EC must take lessons from the Supreme Court, which has a rich history of recording dissenting and minority opinions. Former Chief Justice of Jammu & Kashmir High Court Syed Murtaza Fazl Ali, and former Chief Justices of India Mohammad Hidayatullah and Amal Kumar Sarkar, among others, are remembered for being unapologetically vocal of their disagreements that put forth different insights, ideas and observations.
Among recent examples, Justice DY Chandrachud’s dissent opinion in the landmark right to privacy judgment is a classic must read. Dissenting opinions in Supreme Court judgments have not only added a much-needed layer of transparency to public discourse, but they have also proved to be a rich body of work for subsequent case law and jurisprudence to develop on.
Purpose of dissent
“Dissent means existence of democracy…If dissent is not allowed, it means judiciary is not free,” – Justice SB Sinha, Supreme Court of India.
Dissent in itself serves a larger purpose beyond ‘dissent for the sake of dissent’. Democracy needs to preserve dissent much more than it needs to preserve consensus. Internal workings of constitutional bodies, like those of the Election Commission, should not be shrouded in mystery. Their decision-making is messy, fraught with disagreement, and with differing opinions. But that is the whole point of a multi-member body, much like the purpose of a multi-bench Supreme Court. If everyone became a yes-man, we would be poorer for all the supposed agreements.
There is no doubt that the majority view of the EC is what will prevail, but dissent too has been called as an appeal to the very spirit of the law, and is an indispensable part of all pronouncements. In fact, Section 10 of the EC Act, 1991, under ‘disposal of business’, provides for dissent by stating that “if the Chief Election Commissioner and other Election Commissioners differ in opinion on any matter, such matter shall be decided according to the opinion of the majority.”
But when there is a less than unanimous order, every citizen has the right to know the grounds on which the dissenting member of the decision-making authority is vocally criticising it. The voters are entitled to a free and fair election process, which necessarily involves transparent functioning of the Election Commission as well.
Moreover, restricting an individual from recording his/her opinion in a matter of national importance violates Article 19(1) (a) of the Constitution, which very much includes the right to dissent.
I am reminded of 1991 when elections were held rather efficiently, in a particularly tense background, with communal and caste conflicts dominating the campaign. But the Election Commission, under the leadership on TN Seshan, was tough and, most importantly, fair.
The EC members will meet again today to discuss the issue of “dissent” and “related matters”. In this instance, it is less important whether one agrees with the contents of Ashok Lavasa’s dissent; what is more important is that such dissents should be made part of public records. At stake is the nature of disagreement within India’s premier election body and its template for the future.
The author is a trained lawyer and spokesperson, the Congress. Views are personal. He tweets @vinayakdalmia.