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Mainstream, VOL LVIII No 33, New Delhi, August 1, 2020

Nomination of Lavasa In Asian Development Bank: Blow To Integrity of Referee | Vijay Kumar

Friday 31 July 2020

by Vijay Kumar *

The Modi Government’s decision to nominate Ashok Lavasa, an Election Commissioner, who was slated to become the next Chief Election Commissioner in April 2021, as a Vice President of Asian Development Bank has fateful implications for democracy. It is baffling that this issue, despite its critical relevance for democracy, is not receiving the attention it deserves on the part of both opposition parties and media.

India is a largest democracy in the world and, therefore, the issue of free and fair election becomes categorical imperative. Both democracy and free and fair election have been declared as basic feature of the constitution by the Supreme Court. The Election Commission of India is a crucial referee for ensuring free and fair election. Article 324 of the Constitution vests the power of superintendence, control and direction in the Election Commission of India in most comprehensive sense of term. Since Right to Vote is a constitutional right guaranteed under Article 326, and right to know the credentials and antecedents of candidate is held to be facet of Right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution by the Supreme Court, the power of the Election Commission of India to conduct election is coupled with duty to exercise the power of superintendence, control and direction in a manner which ensures free and fair election and thereby entrench democracy. Thus, the institution of the Election Commission of India and its occupants assume decisive importance for legitimacy for electoral politics.

The institution, according to Steven Levitksy and Daniel Ziblatt, both professors of Government at Harvard University, in their insightful, popular and topical book “HOW DEMOCRACY DIE” acts as a referee, and the role and function of the Election Commission of India is akin to the role of referee of the game. The first priority of elected despot Steven Levitksy and Daniel Ziblatt add, is to suborn the referee and if that does not materialize, to weaken it. The Authors of “How Democracy Die” concludes that the Constitution and Law cannot always check the backsliding of democracy and the undermining of democracy could be interrogated by robust democratic norms.

The inducement of the post of the Vice President of multi-lateral body was preceded by threat to family members of Lavasa through notice issued by Income Tax department to his wife and Enforcement Directorate raid to the company in which his son was one of the directors. The Government first wielded stick, and when that failed to work, it held out carrot by alluring Ashok Lavasa with a nomination on a post which would carry fat tax free salary. Unfortunately for our democracy, the attempt to inveigle succeeded. The nomination, as per practice, must have been preceded by consent of Mr Lavasa. Sri Ashok Lavasa, who has demonstrated his independence on numerous occasions through his principled dissent, could not rise to the occasion and protect the dignity and prestige of office of the Election Commission of India by failing to withstand the lure of lucre. Stewardship of constitutional body mandated to conduct mammoth election in transparent and impartial manner turned out to be brittle on the face of strong temptation. In the process, the autonomy of the Election Commission of India has completely been subverted.

The occupant of the Election Commission of India is not a private citizen and his decision to become the Vice President of Asian Development Bank by giving up his rightful claim of Chief Election Commission of India has public dimension, as the integrity of referee of electoral game was at a stake. Since public element is an inescapable aspect, hard choice and decision warrants the articulation of cogent ‘public reasoning’ in a sense conceptualized by late John Rawls and has been entrenched in recent times by Prof. Amartya Sen.

The public institution, particularly constitutional office, according to Francis Fukuyama, is designed to promote and protect democratic values, and thus, it’s independent functioning is inextricably intertwined with the rule of law. Therefore, compromise with prestige and esteem of the institution will result in subversion of rule of law. Similarly, Prof. Amratya Sent has also argued in “IDEA OF JUSTICE” that democracy needs countervailing forces, and the institutions do perform the function of countervailing power. The Supreme Court of India and the Election Commission of India are constitutionally enjoined to interrogate the executive transgression by enforcing fundamental rights guaranteed to citizen and by maintaining the purity of election by interrogating electoral deviance respectively Every institution, in the word of Prof. Ashutosh Varshney, has its own institutional logic, and according to him, the institutionalized logic is more important than ideology of ruling leader (Battles Half Won).

The brazenness, calculation and machination with which the government got rid of Ashok Lavasa has grave implications for democracy. Steven Levitksy and Daniel Ziblatt further sum up that the political parties are the most important gatekeepers and they are supposed to perform the function of what the Authors term as guard railing. The ominous and inexplicable silence on the part of all opposition parties, particularly on the part of the congress party, and the mainstream media has brought to the fore that they are not measuring up to the task of gatekeeping and guard railing.

(Vijay Kumar, is an Advocate at the Supreme Court of India)

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