“JUDICIAL review, itself a limitation on popular government, is a fundamental part of our constitutional scheme. But to the legislature no less than to the courts is committed the guardianship of deeply cherished liberties. …Where all the effective means of inducing political changes are left free from interference, education in the abandonment of foolish legislation is itself a training in liberty.”

Justice Felix Frankfurter’s remarks provide a classic warning not only against the excesses of judicial review by the superior courts of the country, but even more so by quasi-judicial bodies, such as the Election Commission.

The Election Commission of India has done the country proud by its manifest independence, impartiality and efficiency. But no one can be above the law. Following years of chief election commissioners of varying mettle, in 1990 a former cabinet secretary with a record of high-handedness was appointed chief election commissioner.

T.N. Seshan lost no time in gingering up the system regardless of the limits which the law imposed on his powers. Successors have also tended to cross the limits.

Article 324 of the Indian constitution vests in the Election Commission powers of “the superintendence, direction and control of the conduct of all elections to parliament and to the legislature of every state”, as well as elections to the offices of the president and the vice-president of India.

Thirty-five years ago the Supreme Court ruled that Article 324 was a “reservoir of power” on matters not regulated by the law; understandably since no election law can govern every contingency or situation. Decades ago, the Election Commission framed, in consultation with political parties, a ‘Model Code of Conduct for Political Parties’. It has no statutory sanction at all. It enforces the code by threatening to postpone or cancel a poll if it finds a breach. Which political party or candidate would risk waste of money already spent?

Coupled with the excesses of judicial review by the courts, the Election Commission’s hare-brained exertions add up to the making of a zealously protective nanny state; with the best of motives but also in disregard of legal limits.

For the recent general election, the Election Commission amended the code to provide that the political parties’ election manifestos will not just have to “reflect the rationale” for a promise but will also have to “broadly indicate the ways and means to meet the financial requirements for it”.

Stating that the “trust of voters should be sought only on those promises which are possible to be fulfilled”, the new guidelines say that “political parties should avoid making those promises which are likely to invite the purity of the election process or exert undue influence on the voters in exercising their franchise”.

The Supreme Court had, in 2013, directed the Election Commission to frame guidelines regarding the contents of election manifestos in consultation with all recognised parties.

The voter needs no such protection. He is perfectly capable of forming his own judgement. This is where Justice Frankfurter’s dicta come in — inducing political changes must be left to the free movement of the political process. The education this imparts in abandoning bad legislation “is itself a training in liberty”.

The Election Commission felt itself free to ban a couple of politicians — doubtless of bad reputation — from campaigning in specified areas. This breach of the right to freedom of speech and movement was not supported by any law.

Opinion polls make the Supreme Court as well as the Election Commission feel protective of the voter. In 1998, the Canadian Supreme Court struck down as void legislation on federal elections prohibiting the publication of opinion polls within three days of poling day. It said that the voter should be credited with enough judgement to interpret opinion polls intelligently. In India exit polls are banned till the completion of the elections. Surely, it is open to the voter to know the election trends and to arrest the winning trend, if he so chooses, or to strengthen it?

In 2014 the Supreme Court stretched the clear terms of the election law to ban political advertisements on television within 48 hours of the poll. Earlier, the court went so far as to assert “We can even give the Election Commission pre-censorship powers and ask the centre to provide you men and machinery and all possible assistance in the enforcement of the guidelines.”

Such a state of things comes to pass only because in a polarised polity the politicians fail to perform their duties.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, May 17th, 2014