EC better off without contempt powers

There is no reason to accept or even seriously consider the Election Commission’s demand that it be given contempt powers to deal with critics and criticism of its conduct and actions. The Commission has written to the government that the Contempt of Courts Act may be amended to empower it to take suo motu action against those who scandalise it, make “unfounded” charges against it and lower its credibility. Its request may have been prompted by the recent criticism of its conduct of elections, especially about the use of electronic voting machines (EVM), and by charges levelled by the Aam Aadmi Party (AAP) that two Election Commissioners are biased and partisan. The Commission wants contempt powers to protect its “institutional integrity.” But integrity is best protected not by the threat of action against those who question it but by prompt reply or action to deal with the criticism. The EC’s hackathon in the case of the EVMs was the right response. The critics did not have a reply to the challenge, and it is their credibility that suffered in the process.

The judiciary has contempt powers because it functions at a different level and judges do not have the opportunity to respond to criticism in public. Judges usually go by the convention of not commenting on criticism of their conduct or judgements. There is a view that even the judiciary does not need these powers, and in some countries they do not exist or are being sparingly used. The EC is a public institution which can and should reply to the public criticism and should not think of shutting down criticism through threat of penalty. Its functions are different from those of the judiciary. The EC says some parties are taking advantage of the “right to freedom of expression” when they criticise it. To curb the freedom of expression in order to protect the Election Commission against criticism would certainly be wrong.

There are other constitutional bodies like the Comptroller and Auditor General of India (CAG) and the Central Vigilance Commission (CVC) which have important functions to perform. Offices like those of the President and governors have major functions and responsibilities. They have all faced charges of partisanship and worse. By the EC’s logic, there may arise demands for giving contempt powers to these offices also. In a democracy, the best way to handle criticism is to respond to it, make corrections if necessary and improve, and be transparent. The poll panel has gained its credibility by improving its functioning over the years, and not by punishing those who have criticised it. It is criticism that actually helped it to improve and earn credibility.