If the allegations made by Election Commissioner Ashok Lavasa are true, then it would amount to tampering of records and is a criminal offence
Election Commissioner Ashok Lavasa has recused himself from attending meetings of the Election Commission of India on deciding violation of Model Code over what he claimed was his “minority decision going unrecorded”.
If a constitutional functionary claims that his decision is going unrecorded, then it is a serious issue as it would amount to tampering of records and is a criminal offence.
People’s faith and trust on this high constitutional body is more, as they are entrusted with the colossal task of conducting elections to the Parliament and State Legislatures.
These legislative bodies are temple of democracy where voice of the people is heard and will transact into law.
How does the Election Commission transact their business?
The Parliament has enacted “The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991” to determine not only the conditions of service of Chief Election Commissioner and other Election Commissioners, but also to provide for the procedure for transaction of business by the Election Commission.
Chapter III of the aforesaid Act deals with transaction of business of Election Commission. Section 10 postulates that all businesses of Election Commission shall, as far as possible, be transacted unanimously. In case of difference of opinion, such matters shall be decided according to the opinion of the majority.
The Hon’ble Supreme Court in the case of T.N. Seshan vs. Union of India, while approving that the Election Commission can have multi-member body consisting of Chief Election Commissioner as well as Election Commissioners, held thus -- “Chief Election Commissioner is merely a functionary of that body. Chief Election Commissioner must so conduct himself at the meetings chaired by him that he is able to win the confidence of the colleagues on the commission and carry them with him and that CEC may find difficult to achieve if he thinks that others who are members of the Commission are his subordinates. The functions of the Election Commission are essentially administrative but there are certain adjudicative and legislative functions as well. They have to lay down certain policy decision on certain administrative matters and adjudicate certain disputes. They also undertake quasi-judicial duties and subordinate legislation-making functions as well. It cannot be stated that final word in all matters lies with the Chief Election Commissioner which is against the scheme of Article 324”.
According to Ashok Lavasa, “his minority decision” is going unrecorded. Since the Election Commission discharges public functions including administrative, quasi-judicial and legislative functions, law expects that the decision should be in writing and to be recorded.
Otherwise, it will be difficult to find out whether the opinion is unanimous or there is any difference of opinion among the Chief Election Commissioner and Election Commissioners. Recording of views and disclosure to the person affected by the order is not a mere formality, but it is one of the steps of exhibiting the mind of authority. Otherwise, any decision will run the risk of violating the fundamental principles of natural justice.
In case of judicial review of decisions of Election Commission, the Court can examine the decision to find out whether the authority has applied its mind in accordance with law or not. Therefore, if the allegations of Ashok Lavasa are to be true, certainly the President has to step in; otherwise, people will lose their trust and faith on this great Institution.
(The author is a Senior Advocate & Former Additional Solicitor General of India)
(Disclaimer: The views expressed in this article are of the author’s alone and not necessarily those of The Lede)