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Counselling mutual accommodation

The judgment of the Madras High Court that the Election Commission does not have the authority to direct the transfer of the Greater Chennai Police Commissioner before elections are formally notified calls into question many of the assumptions under which the Commission has been functioning in the recent period. The Commission "requested" the transfer on the ground that in a newspaper interview on the occasion of the International Women's Day, the police official held up Chief Minister Jayalalithaa as "the perfect example of the ideal woman"; and such remarks raised doubts over his impartiality in the conduct of the elections. On the statement itself, the Court delivered a mild rebuke to the Commissioner, observing that there was "a slim possibility of its being misconstrued" and concluding that he "could have been more circumspect." More significant was its ruling that the Election Commission would gain powers to effect such transfers only after the election was notified and the election process was set in motion. The Commission's general power of superintendence over the conduct of elections under Article 324 of the Constitution would operate in areas where there was no legislation, and in this case the Representation of the People Act, 1951, specifically provided that officers designated for election work would come under the control of the Commission after the election process began.

The Madras High Court order has brought into focus the critical issue of the reach of the Commission — whether in its crusade for fair elections it can fall back on its constitutional mandate when it finds the legislative and administrative support inadequate. Where the object is unexceptionable as, for instance, in requiring candidates to declare their assets and any serious criminal charges they may be facing, the Supreme Court has upheld the Commission's authority to fill the gaps in the law. On the other hand, there have been cases of overreach, particularly in dealing with State administrations, and the courts have had to restrain the Commission. In its new and activist post-1990 phase, the Commission has, by and large, been a force for the good, preventing malpractices and cleaning up the electoral process. If at times its actions amounted to constitutional aggrandisement, orders such as the one issued by the Madras High Court have served to bring a sense of realism. As the Supreme Court counselled on several occasions, on issues such as force requirements to handle security during elections and the transfer and posting of specific officers, it is essential that the Commission and the Central and State administrations hold consultations, function in cooperative spirit, and avoid confrontationist postures. Also at issue is the propriety of top civil servants expressing admiration for one political leader or another. Whether such sentiments are genuine or are made in the expectation of some reward, they smack of non-professionalism and sycophancy and are best avoided.

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