The Big Story: Easy come, EC go

The independence of the Election Commission has been called into question in several of its recent decisions. In the latest case, though, in the Aam Aadmi Party office-of-profit controversy, the commission might actually be on a strong wicket. The case took a dramatic turn on Sunday, when President Ramnath Kovind approved an order disqualifying 20 members of the Delhi Legislative Assembly for violating rules.

Early on in its tenure at the head of the Delhi government, AAP had appointed a number of MLAs to be Parliamentary Secretaries to assist ministers and seemed to realise or admit only later that this fell afoul of laws prohibiting legislators from holding governmental offices of profit. The party even acknowledged as much, passing a bill that would retrospectively cover their tracks in the Delhi Assembly five days after a petition questioning the appointment of the secretaries was filed in the High Court. The President refused to give assent to the bill, and so it was sent back.

As a result, the Delhi government does not have much of a leg to stand on. And yet this makes it seem even more baffling why the Election Commission would act in such an overbearing fashion when it appears to have had a solid case. Concerns have been voiced by former officers of the body, including one former chief election commissioner, speaking to the Indian Express, that due process was not followed in the case. The officers point out that the previous order on the matter, on June 23, 2017, affirmed that the case was maintainable and would be heard – yet no hearing was held afterwards. The party has complained on similar grounds, saying its MLAs were not given a hearing.

AAP’s arguments, at least the ones that seem to be relevant here, are technical. One, that their MLAs were not given a hearing. And second, that a High Court decision had concluded that the appointments of the parliamentary secretaries had been void ab initio, meaning from the start itself, so where is the question of holding an office of profit? Beyond that the party has also argued that the posts were not in fact offices of profit since the MLAs did not get a pecuniary gain, but the election commission and the Supreme Court have in the past had very specific interpretations of what that means which might apply in this case as well. Given the substantive stand the EC appears to be taking, it is surprising that it chose to deny the MLAs an in-person hearing, giving AAP an opportunity to argue that the commission is being unfair.

The EC’s independence has been under scrutiny of late, and for good reasons. Its decision to delay Gujarat elections rather than announce them along with Himachal Pradesh was widely seen as bowing to the Bharatiya Janata Party’s desire for more time to campaign in the state. It has responded to questions about Electronic Voting Machines in a prickly manner, calling those demanding answers “losers”. It recently took a u-turn in the question of electoral bonds, a new method of opaque party funding that it originally called a “retrograde step” but now believes to be a positive change. And now, rather than carry out the matter with in-person hearings, it has delivered a verdict, that too days before the CEC is to retire.

It may be a cliche, but it is one that is relevant: Not only must Justice be done, it must also be seen to be done. In this case, the election commission actually appears to have a strong case against AAP, yet the manner in which it conducted itself has left it open to questions of partisanship and criticism. This is dangerous for a country that depends heavily on institutions like the commission to uphold norms and ensure something that approximates a level playing field for political parties in the state. That the EC appears to not be bothered by the criticism levelled against it is even more disturbing. Our institutions ought to be answerable to the public, and not the government of the day.

The Big Scroll

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Punditry

  1. “There is an urgent need for a trained cadre to provide accessible primary-care services that cover minor ailments, health promotion services, risk screening for early disease detection and appropriate referral linkages, and ensure that people receive care at a community level when they need it,” writes Rajiv Lochan in the Hindu.
  2. “India has a lot to learn from ASEAN. The irony of India abandoning its immediate neighbourhood where its relations are in hopeless drift, where regional cooperation is moribund, and to jump into the bandwagon of its ‘extended neighbourhood’ cannot be lost on the ASEAN leaderships,” writes MK Bhadrakumar in the Tribune.
  3. “Aadhaar, India’s grand program to provide a unique 12-digit identification number to each of its 1.3 billion residents, appears to be collapsing under its own ambitions,” writes Reetika Khera in the New York Times.
  4. “One suspects that the real reason behind this move is in part to further drive home the ‘Hindi, Hindu, Hindustan’ message that has been behind many decisions. The multi-hued India is sought to be painted a uniform shade of saffron,” writes Kartik Venkatesh in the Tribune.

Don’t Miss

Kumar Sambhav Shrivastava writes on how the government ignored the cost of pollution and undermined its clean air rules.

Within a month of new norms being notified, the Association of Power Producers, an industry body representing thermal power station owners, wrote to the Central Pollution Control Board, asking it to exempt older power plants, citing technical difficulties and financial costs.

In response, the Central Pollution Control Board said in February 2016: “Improvement in environmental conditions by adopting cleaner and best available technologies cannot be linked with financial aspects.” It also pointed out that thermal power stations contribute about 90% of industrial emissions in terms of nitrogen and sulphur oxides and particulate matter.

But as the deadline for power stations to meet the new norms approached, the environment ministry buckled in, accepting a plan submitted by the power ministry for a phased adoption of new technologies by power stations. It undermined its own regulations that could have given Indians some respite from toxic air.

Environmental lawyer Ritwick Dutta pointed out that the way the environment ministry has extended the deadline by five years is itself legally questionable. “Rules are notified in the official gazette of the government,” he said. “If the ministry wanted to relax the deadline, it should have amended the rules.” Such an amendment requires mandatory public consultations. Dutta said the ministry was setting a wrong precedent by letting its own rules be violated by simply issuing directions.