By Joseph Maliakan
Even as the country is celebrating the 75th anniversary of the adoption of the Constitution of India , the Ministry of Law and Justice in a blatant violation of the basic features of the Constitution on 20th December 2024 issued a notification amending Rule 93 of the Election Rule 1961 . The rule which gave all citizens the right to srutinise documents related to elections conducted by the Election Commission of India was a guarantee for holding ” free and fair ” elections.
The Rule 93 of the Election Rule 1961 was provided to ensure a high degree of transperancy and accoutaability on the part of the Election Commission in the conduct of elections. Amidst large scale criticism of unfair conduct by the Election Commission in the conduct elections , it was actually in the interest of the Election Commission to retain Rule 93.
But ironically the amendment to Rule 93 of Election Rules 1961 came on a recomendation from the Election Commission , which wanted restrictions on the types election related documents open to public scrutiny. While the original rule stipulated all documents related to elections, except the identity of the voter will be open to scrutiny by the public the amendment says that only documents specified by the Election Commission will be available for scrutiny.
This has naturaly led to the suspision that the conduct of the Election Commission has been suspect on many counts and ocasions and it has somethings to hide. One fails to understand the logic behind a rule which says that the functioning of an institution will be judged by the rules laid down by the institution itself , without even notifying the stake holders.
The Election Commission’s recomendation is not only suspect , it is also unconstitutional and undemocratic. In the scheme of the Indian Constitution the Parliamnet is Supreme and the institutions under the Constitution including the Executive cannot violate Acts of the Parliment. Any student of law knows that the present notification is in violation of Right to Information Act.
The amendment was made obviously without proper study following a 5th December judgemnet by the Punjab and Haryana High Court directing Election Commission to provide recordspertaining to a polling booth in the recently held Assembly Elections in Haryana to advocate Mehmood Pracha.
Advocate Pracha had filed the petition seeking access to videography, CCTV footage and copies of forms 17- C Pat I and II of the Assembly election .The High Court has directed the EC to provide the documents to the advocate within six weeks , that is before 15 January 2025.
A number of commentators have pointed out that the notification amending Rule 93 has been issued by the Ministry of Law and Justice as a reaction to the Punjab and High Court direction to the Election Commission. High Courts being Constitutional Courts no notification by the State or Union government can nullify a High Court order. Under the circumstances one fails to understand the hurry in which the Ministry of Law and Justice acted in this case. Our bureaucrats are living in a fools paradise if they believe that a Ministry notification can undo a High Court order.
Apart from the fact that the notification is unconstitutional there is also the question of undermining the multiparty system by the Election Commission by resorting to making recomendations affecting the election process the country which is being under the radar of various stake holders.
Hotherto , whenever any change conteplated the Election Commission used to hold consultations with the stake holders, particularly the recognised national parties. Following present notification almost every political party in the country haveopposed move.
Tamil Nadu Chief Minister M.K. Stalin on 23 December described the amendment to the Election Rule was a grave threat to ” freeand fair ” elections and the NDA government led by the BJP benton ” killing transparency” in elections.
The Congress Party has through a petition in the Supreme Court challenged the amenmentto the Election Rules 1961 restraing access to election related documents to the public . The Election Commission cannot be allowed to unilaterally suggest amendments to Election rules without any consultation and thereforeettion the same should be set aside , the petition said.
The complaints against electoral malpractices indulged in with full knowledge of the Election Commission is in the increase .In the byelection to the Rampur assembly Constituency in Uttar Pradesh majority of Muslim voters were prevented from voting by the local administration and the Election Commission remained a silent spectator.For the first time in a Muslim majority area the Bharatiya Janata Party ( BJP ) won literally hands down.
Further , according to a study made by the Assocition of Democratic Rights ( ADR ) in the 2024 Lok Sabha elections out of 543 constituencies in 538 constituencies there was discepency between the votes polled and the votes counted . Despite repeated requests the Election Commission has not given any explanation for the discepency.
The Electronic Voting Machines ( EVM s ) , are reliable , both the Election Commission of India and the Supreme Court of India have held. But how come in many istances in recent times there have been diferences between the votes polled and votes counted. The EC owes an explanation to the voters. Amendments restricting public scrutiny of election documents will only make elections a farce.
Ends…..
