"EC misusing Constitution"

Sandesh Prabhudesai
6 March 2001  

The Election Commission of India is being accused of misusing the constitutional provisions while encroaching upon the rights of Parliamentarians in making laws.

Shantaram Naik, a former MP from Goa, has cited one such recent case which would affect all the political parties contesting Parliamentary or Assembly elections. The provision relates to the membership of a political party.

The EC has issued an order on 1 December 2000, amending the Election Symbols (Reservation and Allotment) Order, 1968, which now requires every candidate contesting election either to the Parliament or the state Assembly to make a declaration in his nomination paper that the candidate is a member of that political party and his name is borne on the roll of members of the party.

While welcoming the new concept in principle, Naik in a letter to the EC has said that it is most unfortunate that such a substantive aspect of law relating elections is being introduced through the order under Article 324 of the Constitution of India.

"The constitution merely gives power to the EC of superintendence, direction and control of the preparation of the electoral rolls and to conduct all elections of Parliament and the Legislature of every state", observes Naik.

According to him, creating such laws is the job of the Parliamentarians and not the EC. Orders of the EC could at the most cover aspects like using sound system, holding of public rallies, sticking of posters and other election material, using of official vehicles, ministers' visits, law and order and other related matters, he opines.

"The EC cannot encroach upon the Parliament, which is passing through a difficult phase because the judiciary is enacting new laws every day on one hand while the EC is also obsessed too much by Article 324", states Naik.

He has also pointed out several flaws in the order which would create confusion when this provision would be actually implemented at the forthcoming Assembly polls. The EC has not applied its mind to the aspect, he feels, as the provision is too vague to be complied by political parties, candidates or the returning officers.

Political parties have different types of memberships and each party finalises their party electoral rolls in various fashions. The Congress, for example, takes over one year for scrutiny before finalising membership of a primary member. While similar kind of procedure exists in any political party, the order does not even specifies which roll to consider, providing enough scope to prepare bogus roll of membership, feels Naik.

Directions are also not being issued to resolve the tangle of cross-checking the membership by rival candidates if the rival candidates require to examine the documents. This will require submitting a complete roll along with a report of organisational elections to the returning officers much in advance. He also points out at another disadvantage of not providing opportunity to a new entrant to contest elections.

In order to avoid confusion over the matter in the forthcoming Assembly elections, Naik has urged the EC to convene a meeting of all the political parties and sort out the matter, before implementing the provision.

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