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Eloquence of silence needed in poll period, says CEC Sunil Arora

EC legal division says MCC orders not quasi-judicial, so dissent can’t be recorded; Arora says controversy after clean chits to Modi ‘highly avoidable’.

, ET Bureau|
May 06, 2019, 06.47 AM IST
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Arora declined to elaborate any further on the issues red flagged by Lavasa in his dissent notes to the Commission, citing the ongoing elections.
NEW DELHI: Breaking his silence over the dissension within the Election Commission of India over clean chits to Prime Minister Narendra Modi’s campaign speeches, Chief Election Commissioner Sunil Arora told ET he considered the controversy “highly avoidable” and that he would rely on the “eloquence of silence” until the elections are over. “At this point of time, my considered view is that eloquence of silence is always difficult but far more desirable to see the (election) process through, instead of creating ill-timed controversies,” CEC Sunil Arora told ET.

When questioned on the written dissents by Election Commissioner Ashok Lavasa and why this was not being recorded in Commission orders on model code violation complaints, the CEC referred to the ‘executive’ nature of EC decisions.

ET has learnt ECI’s legal division was asked last week to examine the issue of ‘dissent’ as raised by Lavasa. After studying Supreme Court orders, the legal wing has opined that orders on the Model Code of Conduct violations are “executive decisions” in which “there has not been any occasion to incorporate minority decision”.

Lavasa while recording his dissenting view with respect to several recent EC decisions had wanted his observations to be recorded separately and put in the public domain.

Arora did not want to get into the details of the subject but when pressed said: “There are so many pronouncements of Hon’ble courts which say exactly what quasi-judicial proceedings are and should be and also what executive decisions of the Commission are. The present controversy as reported in the media was therefore highly avoidable.”

He declined to elaborate any further on the issues red flagged by Lavasa in his dissent notes to the Commission, citing the ongoing elections.

“Election process is already underway, four phases have already been completed, the fifth phase is on May 6 and there are only two more phases to go,” he said.

SC Order of 2018
“All our chief electoral officers (CEOs) and colleagues on the field are working day in and out to take the election process forward. Similarly, senior officers at the headquarters are putting in long hours…I have nothing more to say on the subject till the conclusion of the poll process,” the CEC observed.

Meanwhile, ET has learnt that ECI’s legal division has examined precedents and issues of dissent within the poll panel and came to the conclusion that these are primarily executive decisions — which implies that final orders may not record differing or dissenting views.

“In the Commission there have been instances of communication both, majority and minority, decisions in reference case/symbol orders. However, there has not been any occasion to incorporate minority decision in the decisions concerning violations of the MCC, which are primarily executive decisions and does not have outcome certainty (of yes/no),” the legal divisions has said.

The opinion cites a Supreme Court order of 2018 on State of MP vs Mahendra Gupta which says that in a multi-member body “normally all decisions of the body are expressed by opinion of majority of the members present except where the special majorities are provided in the statute itself ”.

EC’s internal legal view is that quasi-judicial and executive decisions ‘differ qualitatively in procedural aspect’ as the former require an inquiry to be held after giving an opportunity to the affected parties to give evidence in support of their contention. Model code violations, on the other hand, require to be addressed within the election period and hence are not put through the more elaborate ‘quasijudicial’ proceedings which would require all dissent also be recorded in official orders.

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