Contempt powers

The Election Commission has reportedly written a letter to the Centre, seeking contempt powers to act against anyone or any political party questioning its credibility through "unfounded allegations". In its missive to the Centre, the poll body has sought amendments to the Contempt of Courts Act, 1971, empowering it to penalise anyone being "disobedient and discourteous towards its authority," as per a recent report in a leading news publication. Under the current scheme of things, the EC has no legal recourse against those individuals or political parties who lay all sorts of allegations. The letter cited an example of how their counterparts in Pakistan, for instance, are given powers to initiate contempt proceedings against anyone sullying its image.

The letter comes at a time when Opposition parties like Aam Aadmi Party and Congress have alleged tampering of electronic voting machines (EVMS) during the recent spate of civic and Assembly elections around the country, and in the process accusing the poll body of favouritism. To its credit, the EC has addressed these allegations head on. It is, however, rather disconcerting that one of India's key institutions involved in the preservation of democracy should seek the protection of an illiberal, overbearing and outdated law to protect itself. On more than one occasion, legal experts have raised serious concerns about the contempt law in this country, with some even seeking its removal from the statute books altogether. Critics believe that the contempt law goes above and beyond the constitutionally valid "reasonable restriction" on the freedom of speech and expression. In addition to penalising those who obstruct or disobey court orders, this particular provision in our statute books also allows Indian courts to take this route for vague offences like "scandalising" and "lowering the authority of the court". There is little legal accountability to back these vague provisions, considering it is up to the judge's discretion to decide whether a contempt offence falls under any of this broad list of offences. Post-Independence history is littered with instances where courts have abused contempt powers. It is a fact even acknowledged by the judiciary.

In 2007, Supreme Court said that misuse of contempt powers could erode the public's confidence in the judiciary. The apex court bench, while laying down norms to deal with contempt cases said: "courts should not readily infer an intention to scandalise courts or lowering the authority of courts unless such intention is clearly established. Nor should they exercise power to punish for contempt where the mere question of propriety is involved." In other words, the courts should not arbitrarily shut down those who question it, although the very provision gives judges overseeing legal proceedings the scope to do the same. Does the poll body want to sully its institutional reputation and follow the path taken by our unaccountable courts? Over the decades, the ECI has built itself as a dynamic and transparent institution that has carefully overseen mostly free and fair elections. This has generated credibility in the face of larger political forces governing this country that consistently remain in a state of flux. Irrespective of the other failings that have dogged Indian democracy, the people have maintained faith in the practice and spirit of free and fair elections. When political outfits like the Aam Aadmi Party, Bahujan Samaj Party and the Congress alleged EVM tampering, the poll body decided to respond by inviting them to a "hackathon" to test them. In other words, the commission sought to take on public criticism with greater engagement and transparency—elements that add to an institution's integrity.

This is not to suggest that the poll body should not be vested with more powers to tackle electoral malpractice. Since the introduction of electoral reforms in the 1990s, the ECI has shown greater intent in cleaning up the corruption that has distorted verdicts and introduced better logistics to ensure peace during voting. Despite attempts to weed out corruption and force parties into following the rules through its imposition of the Model Code of Conduct, it has been unable to change much. In fact, the ECI was unable to act against the candidates responsible for such blatant acts of bribery. "The panel has done what it can within the powers granted to it by the Constitution," said former Chief Election Commissioner, N Gopalswamy, to The News Minute. "There are limitations to the body's power. The commission can only file a complaint, the police and courts have to take up the matter from here. Change must come in the form of fast track courts, which ensure political cases are dealt with immediately because otherwise, political parties and people will not fear the law," he added. What the recent RK Nagar episode in Tamil Nadu represented was a severe test for the poll body's credibility. Parliament could amend the Representation of Peoples Act, arming the EC with powers to disqualify candidates or parties caught bribing voters. But there are also those who believe that the ECI cannot be given too much power. Such powers will lead to dangerous outcomes, they argue. This is the sort of conversation that the poll body should have with elected representatives. It does not need contempt powers to take on critics.