Why EC must share Lavasa’s dissent notes on Modi’s election speeches

Chief Election Commissioner Sunil Arora, along with Election Commissioners Ashok Lavasa and Sushil Chandra, in New Delhi. Photo: PTI

It is a coincidence that the Chief Election Commissioner’s (CEC) rejection of an RTI request for disclosure of dissent, in violation of fundamental right to freedom of speech and expression under Article 19(1) (a) of the Constitution, clashed with the 44th anniversary of Emergency in India.

In his speech in Parliament on June 25, Prime Minister Narendra Modi rightly rescinded the concept Emergency, stating that because of people’s rejection of that (Indira Gandhi’s) regime, the country’s “democratic ethos prevailed over an authoritarian mindset”. Ironically, the CEC’s refusal to disclose the dissent notes of its commissioner Ashok Lavasa on the speeches of Prime Minister Narendra Modi which allegedly violated model code of conduct, shows the authoritarian mindset of public authorities.

Curious case of clean chits

There were several complaints alleging that the Prime Minister had breached the model code of conduct by invoking minority community and army during election rally speeches at Wardha, Latur, Patan, Barmer and Varanasi. The Election Commission (EC) gave clean chits to the PM in all these cases. But Lavasa, one of the election commissioners dissented, which means there were breaches. Vihar Durve, a resident of Pune had requested the EC to disclose the dissenting notes of Lavasa to the EC while hearing complaints.  But the EC denied using Sec 8(1)(g) that exempts disclosure of information which can potentially endanger life and physical safety of a person or the source of the information or assistance given in confidence for law enforcement or security purposes.

It may be recalled that the Election Commission was on a spree giving clean chits to Prime Minister and BJP President Amit Shah, ignoring complaints that their speeches breached the Model Code of Conduct. But, Lavasa found substance and reason in the complaints and voiced his disagreement with the clean certificates being provided by the EC.

By not revealing the fact that there was a dissenting voice within the EC, the commission gave an impression that the ‘clean chits’ it gave were unanimous. Secondly, the reasons for his dissent were not made part of the orders given after examining the complaints. Lavasa wrote to EC for disclosure of dissent notes. As that letter and several reminders struck the iron wall, he decided to recuse from attending meetings of EC on MCC issues.  He said: “My various notes on the need for transparency in the recording and disclosure of all decisions including the minority view have gone unheeded, forcing me to withdraw from participating in the deliberations on the complaints.”

Exhibiting the same mindset, the CEC and the other election commissioners, on May 21, 2019 rejected the request of Lavasa, saying it has “…decided that proceedings of the commission’s meetings would be drawn, including the views of all the commission members … Thereafter, formal instructions to this effect would be issued in consonance with existent laws/rules, etc.” The Election Commission decided that dissent notes will be part of records but not part of the orders. This effectively means neither the complainants, nor the people will know, which EC decided what and why.

Official record

If the dissent note is part of the record, the EC must disclose those notes on their own, without even an RTI request. The Election Commission believes that its decisions on complaints of violation of MCC are not ‘quasi-judicial’. It said it was a matter of their internal functioning, and conflicting or diversified views of election commissioners that largely remained within the confines of EC after demission of office appearing much later in a book written by the concerned ECs/CECs.

The EC’s decision to have dissent notes only in records is also ‘record’. This record forms part of ‘information’ under RTI Act. The EC is a very important constitutional institution envisaged for conducting free and fair elections. Hence, it is public authority under Right to Information Act. The RTI Act, Section 4(1) (b) and (c) say:

  1. publish all relevant facts while formulating important policies or announcing the decisions which affect public;
  2. provide reasons for its administrative or quasi-judicial decisions to affected persons

Hence, all relevant facts about policy of not sharing dissent, the file notes and administrative actions should be revealed to the affected parties. If the leaders of ruling party misuse government machinery and public money in their control to gain an upper hand over the opposition and to influence the minds of the people, it’s a serious issue of public interest. The order of EC in such serious complaint against PM will surely affect entire voters of the nation, influence their voting and future governance. Hence, such decisions should be disclosed to all those affected. This disclosure should be voluntary by PIO of public authority, even when it was accepted to be ‘administrative decision’.

The election commissioners are not directors of private company, nor they belong to exempted category of high security bodies. The documents or information or notes must be voluntarily disclosed under Section 4; and they are not subject to exemptions under Section 8 of RTI Act. Section 24 which generally exempts some notified organisations, but they are also not exempted from Section 4 voluntary disclosures.

Section 4(2) explains purpose of Section 4(1): It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.

Because the Election Commission has not disclosed information voluntarily, the Pune citizen was compelled to ask under Section 3 of RTI Act. He had demanded for Lavasa’s dissent notes, pertaining to complaints against speeches given by Modi in rallies at Wardha on April 1, Latur on April 9, Patan and Barmer on April 21 and Varanasi on April 25. Durve had also sought information about the procedure followed and the decision given by the commission in these cases. Lavasa had reportedly dissented in as many as 11 Election Commission’s decisions involving complaints against Modi and Shah for alleged MCC violation and where they were given a clean chit.

The CPIO of EC has resorted to use the axe of Section 8(1)(g). This can be used only when the CPIO could explain how the disclosure endanger whose life. They did not care to explain whose life was in danger?  Different high courts held that a mere invocation of exception would not entitle the public authority to deny the information, unless they justify the ground for exemption. Here in this case the CPIO should have explained how disclosure would endanger the life of someone. They could not tell whose life is in danger and how?

The Central Information Commissioner, who is on par with the CEC and Judge of Supreme Court, as per RTI Act, has a duty to direct the CEC to disclose the record, which forms part of ‘information’ and ‘record’ held by public authority. The exemption clause under Section 8(1) cannot be invoked in this case because there is no justifiable ground to say that someone’s life is in danger because of disclosure. The CIC also has a duty to apply Section 8(2) which says that if public purpose in disclosure is higher than the harm apprehended by revelation, it should be disclosed. We must wait and see how long first and second appeal to reach the bench, given the vacancies in CIC.

(The author is a former central information commissioner and professor at Bennett University)

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