The story so far: Raising questions of propriety, Chief Election Commissioner (CEC) Sushil Chandra met with Principal Secretary to the Prime Minister, P. K. Mishra, on November 16, where he was “expected to be present.” An official communication from the Law Ministry, which is the administrative ministry of the Commission, said the meeting had been called to discuss electoral reforms. Also, the Ministry claimed that the session with the CEC and Election Commissioners Rajiv Kumar and Anup Chandra Pandey was an “informal interaction”.

Why does this raise issues about the functioning of the Commission?

The “directive” from the PMO has raised concerns about the independent functioning of the Commission, whose autonomy successive CECs have sought to protect zealously. The “informal interaction” of the CEC and two other Election Commissioners with the Prime Minister’s Principal Secretary has raised questions about the neutrality of the Commission, especially when elections to crucial States are around the corner.

The Election Commission is a constitutional authority whose responsibilities and powers are prescribed in the Constitution of India under Article 324. As per information available on the Commission’s website, in the performance of its functions, the Election Commission is insulated from executive interference. It is the Commission which decides the election schedules for the conduct of elections, whether general elections or by-elections. Again, it is the Commission which decides on the location of polling stations, assignment of voters to the polling stations, location of counting centres, arrangements to be made in and around polling stations and counting centres and all allied matters. The decisions of the Commission can be challenged in the High Court and the Supreme Court of India by appropriate petitions. By long-standing convention and several judicial pronouncements, once the actual process of elections has started, the judiciary does not intervene in the actual conduct of the polls.

What was wrong in the letter from the Law Ministry to the EC?

The three ECs are expected to maintain distance from the executive — a constitutional safeguard to insulate the commission from external pressure and allow it to continue as an independent authority. The EC’s communication with the Government on election matters is through the bureaucracy — either with its administrative ministry — the Law Ministry or the Home Ministry for the deployment of security forces during elections. In such cases, the Home Secretary is often invited in front of a full commission where the three commissioners are also present. The Law Ministry spells the fine print on law for the country and is expected not to breach the constitutional safeguard provided to the commission to ensure its autonomy.

However, from former CEC M.S. Gill who had written to the then prime minister Atal Bihari Vajpayee proposing electoral reforms to former CEC S.Y. Quraishi’s letter to former prime minister Manmohan Singh on the delay in payment for EVMs by the Law Ministry, election commissioners, have from time to time written to prime ministers in the past. In this case, after receiving the letter from the Law Ministry, the CEC, it is learned, conveyed his displeasure and stayed away from the meeting in which his subordinate officials were present. However, the three commissioners did make themselves available for an interaction with Mr. Mishra later.

By making themselves available , has the EC acted in good faith?

Over the last couple of years, several actions and omissions of the commission have come in for criticism. For example, during the 2019 Lok Sabha Elections, the EC under Chief Election Commissioner Sunil Arora gave a clean chit to Prime Minister Narendra Modi, who in an election rally in Latur, had referenced his campaign with an appeal on behalf of the armed forces. The Election Commission of India took the view that Mr. Modi did not violate its rule book. In doing so, the Commission overruled the opinion of the district election officers by stating that Mr. Modi did not seek votes by invoking the Balakot air strikes. This year, the Commission’s belated decision in banning election campaigns in the midst of a rampaging pandemic, raised eyebrows. Eventually, when they banned rallies and public meetings of over 500 people, the decision came a day after Mr. Modi cancelled his four scheduled rallies. Nearly 66 former bureaucrats in a letter addressed to the President, expressed their concern over the working of the Election Commission which they felt was suffering from a credibility crisis, citing various violations of the model code of conduct during the 2019 Lok Sabha Elections.