DC Edit | EC Can’t Act Arbitrarily, Rein In Transfer Powers
However, the Constitution does not confer on the EC the right to take over the functioning of the elected government and the bureaucracy and run them while it holds elections
The midnight operation of the Election Commission (EC) replacing the senior bureaucracy in West Bengal including the chief secretary to the government, the home secretary and the director-general of police without consulting the state government immediately after it announced the schedule of elections to the state Assembly is an instance of unprecedented arbitrariness, administrative excess, breach of propriety and violation of democratic principles. The EC’s action is backed by the Model Code of Conduct, and not by a law, and hence must be considered an act in violation of the constitutional and legal rights of the state.
Article 324 (1) of the Constitution vests “the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the legislature of every state” with the EC, while Article 324 (6) enjoins upon the President, or the governor of a state, to make available to the EC such staff as may be necessary for the conduct of the elections. However, the Constitution does not confer on the EC the right to take over the functioning of the elected government and the bureaucracy and run them while it holds elections.
It is important that the state must act in aid of the EC for the conduct of free and fair elections. It is also important that the EC must have a free hand in running the election machinery which comes from the state governments concerned. It should have the power to remove an officer or a staff who it thinks does not help accomplish its all-important mission. The state government concerned must extend its cooperation in addressing the issues the EC flags. They square with the demands of the constitutional scheme, but shunting out of the entire top brass of the state administration does not.
A state government draws its rights for functioning from the Constitution, and the State List and the Concurrent List mentioned in the Seventh Schedule, to be precise. Declaration of election to Parliament or the state Assembly does not provide for the suspension of the Constitution or the rights mentioned in it; nor does it absolve the state government from discharging its duties with the help of the machinery at its command. Needless to say, it does not call for the EC to take over the functions of the state government.
The Constitution-makers would have imagined that the EC and the governments, whether at the Centre or in the states, would work in tandem to undertake one of the most scared of acts in a democracy, that is the conduct of elections. They would not have in their wilder imagination anticipated a hostile takeover of the administrative machinery of a state by the EC, encroaching upon its right to function under a constitutional scheme.
Parliament must now ponder over fine-tuning the election process in the country and make laws that regulate the conduct of the EC and the governments during the time of elections. It must weigh the demands for the conduct of the free and fair elections and the functioning of the governments, and design a just and fair template that empowers each arm of the state in discharging its duties. Arbitrariness and ad-hocism cannot be the hallmarks of a functioning democracy.
