Reining in ED, bailing out EC

India’s institutions need to stand up and be counted in uncertain times

Alok Tiwari

Two developments last week underlined the importance of having independent institutions to ensure functioning of a robust democracy. Enforcement Directorate (ED), enjoined with enforcing money laundering and foreign exchange offences, appeared to be in a chastened mood by restricting itself in certain circumstances. The second development is regarding government and Election Commission of India (EC) amending rules to restrict access to information about elections to common citizens.

In an internal directive to its offices, ED has asked them to refrain from registering cases simply by adding an offence of conspiracy (Sec 120-B of erstwhile Indian Penal Code) based on an FIR registered by another agency. This had paved the way for ED to proceed against an individual without having to independently make out a case under laws that it is supposed to enforce. This was an easy way to entangle individual in cases. What prompted the ED action to restrain itself was its cases repeatedly failing in courts.

Though the self-imposed restriction is marginal, it still is a victory of sorts for democratic institutions. ED is today perhaps the most ridiculed of central government agencies having lent itself to rampant abuse by the government of the day. Government agencies in India have never been known to have much spine, specially when it came to abuse by the powers that be. Even by our shockingly low standards, ED’s action stood out for their transparently partisan approach. The agency never shied away from undertaking the most brazen harassment of anyone the ruling party targeted. It registered cases, conducted raids, and arrested people left, right, and centre. And then it pressed for their endless remand while it leisurely investigated the cases, depriving citizens of their liberty often for months on end.

What compounded the tragedy was that often the lower courts seemed reluctant to question the basis of such prolonged detention even in the absence of incriminating material on record. Those accused had to go all the way to Supreme Court just to get bail. However, in the last year or so, the agency suffered a string of setbacks, mostly in the SC.

While the court stopped short of calling out the partisan nature of ED’s actions, it made no secret of its frustration with the agency seeking to detain people even while having little evidence against them and making tardy progress on cases. While it granted bail to prominent people in several cases, it quashed a couple that were based solely on cases registered by other agencies. This appears to have led the agency to improve its behaviour a bit. The fact that the central government is no longer run by a single party may also have played a part in ED taking a step back, but it would not have happened without the SC standing firm.

The same, however, cannot be said of the EC. While ED is an arm of the government and thus fully under its control, EC is a constitutional body with its members enjoying constitutional protection for their action. So they colluding with the government to change the rule restricting access to polling information is both unfortunate and dangerous. The change came within days of a Punjab and Haryana high court directive asking it to hand over the material including CCTV footages regarding Haryana elections to a petitioner.

The rule earlier allowed unrestricted public inspection but now that may happen only if an affected party demands or approaches a court. Then too only specified material may be released. Since the rule change appears to nullify a court ruling, it is not clear whether it amounts to contempt of court. What is clear though is that the change is against having transparency in polling process. It also creates an impression that the government and the EC have something to hide. Making available all the material for “public inspection” may be burdensome for the EC but that is the price democracies must pay to preserve integrity of the polling process and maintain public faith in it.

That faith has severely been eroded in recent days largely through government action. Government and the EC may be right in faulting the opposition for raising doubts about EVMs only when they lose, but they have not covered themselves in glory either. It is evident that EC no longer asserts itself as it used to in the days when T N Seshan was the chief election commissioner. His several successors too tried to follow the example he had set and that helped Indian elections rid themselves of many blemishes.

In recent times though, the sheen has gone off the institution. The government has made no secret of its desire to control the EC. It was clear from the way it brazenly replaced the chief justice with a cabinet minister on the panel to appoint election commissioners. Since then, the EC has done nothing to correct the impression that it is inclined to accommodate the interests of the ruling party. This is clear from its scheduling of elections to selective response to poll code violations. The EC has also not been able to explain the discrepancies in the voting figures given at different times. This, more than anything else, has led the opposition and democracy activists to question the many puzzles in the polling process.

The latest change in the rules enhances the fog of doubt rather than clear the air. In a healthy democracy where citizens are supreme, the movement should be towards greater transparency, not less. Governments will always resist this. They will also always seek to restrict the ordinary citizens and opposition. They are run by politicians who need to win elections. It is for institutions like SC and EC, whose members enjoy a high degree of protection and secure service conditions, to not allow that. While SC has shown some spine so far, the EC clearly needs to develop one.

This column appeared in Lokmat Times on Dec 25, 2024