**The institution of Election Commission is vital in a democratic society for ensuring free and fair elections... If the EC lacks any capacity in any respect to discharge its functions, its deficiency of potcer may be met by legislation in the parliament...

BEFORE giving any opinion on the proposition it is necessary to con aider the existing provisions In the Constitution and the relevant laws regulating parliamentary elections. Democracy means a Government of the people, by the people and for the people, and election is a recognised means to establish such a Government on the basis of the choice and consent of the majority of the voters expressed through periodic elections. So. it is essential that the people are allowed to freely choose their representatives in elections which are ensured to be fair and free. Otherwise the very purpose of holding elections will be defeated.

Keeping in view the importance of fair and free elections in a democratic society, our Constitution has provided for the Election Commission to perform the functions of conducting elections for the office of the President, the members of Parliament add other elective local bodies. The object in setting up the Election Commission Is to ensure fair, free and impartial election. In order to achieve the object of fair and free election, the Election Commission must itself be independent in the exercise of its functions, that is. free from influence by any quarter

Articles 118 to 126 of our Constitution deal with elections including the appointment of Election Commissioner and settlement of election disputes. Article 118(1) provides that the appoint of the Chief Election Commissioner and other Election Commissioner (if any) shall, subject to the Provisions of any law made In that behalf, be made by the President The tenure of Office of the Election Commissioner Is five years from the date on which he enters upon his office. Sub-ar tide (4) of Article 118 declares that the Election Commission shall be independent tn the exercise of its functions and subject only to the const! tutlon and any other law. No qualification for the Post of Election Commissioner has been laid down In the Constitution. But in order to secure Independence of the Election Commissioner it is provided in Sub-article (5) of Article 118 that he shall not be removed from his Office except in like manner and on like grounds as a Judge of the Supreme Court. A Judge of the Supreme Court may be removed by the President If the Supreme Judicial Council consisting of the Chief Justice of Bangladesh and the two next Senior Judges, after making inquiry reports to the President states thaf in its opinion the Judge has ceased to be capable of performing function of his office or has been guilty of gross mtscon duct (Article 96)

It is pertinent to refer to the Provision for appointment of Supreme Court Judges and their Independence Article 94(4) of the Constitution pro vldes that Subject to the Provisions of this Constitution the Chief Justice and other Judges shall be independent in the exercise of their Judicial functions The Chief Justice and other Judges shall be ap pointed by the President Artl cle 95(1) of the Constitution The independence of the Supreme Court Judges was never questioned on the ground of a particular regime In view of the public Impor tance of the functions assigned io the Election Commission. Supreme Court Judges, either . sitting or retired, have all through been appointed as Election Commissioner Mr Justice Idris Mr Justice A K M Nurul Islam Mr Justice ATM Masud. Mr Justice Sultan Hoe sain Khan and now Mr Justice Abdur Rouf They were all ap pointed as Chief Election Commissioner Even the Elec tlon Commissioner was also appointed from amongst the Judges of the Supreme Court Mr Justice Abdul Jalil has recently been appointed as Elec tion Coihmissioner

The functions and respon slbilities for holding elections are vested In the Election Commission by Article 119(1) of the Constitution which pro vldes that the Superlnten dence. direction and control of the preparation of the electoral rolls for elections to the Office of President and to Par Hament and the conduct of such elections shall vest In the Election Commission which shall In accordance with this Constitution and any other law

tai hold elections to the Office of President

(b) hold elections of mem bers of Parliament

(c) delimit the constltuen cles for the purpose of elec lions to Parliament: and

Id) prepare electoral rolls for the purpose of elections to the office of President and to Parliament

Similar provisions have been made in Article 324 of the Indian Constitution including those relating to the appointment and removal of Election Commissioners. The manner of dealing with postelection disputes has been provided for in Article 125 of our Constitution.

Free and fair elections are a basic postulate of a free democratic society. If elections are to be fair and free, they must not he rigged, that is. managed or conducted fraudulently. To guard against this evil. Article 119 of our Constitution provides for the aforesaid steps to be taken by the Election Commission, which is declared to be Independent by Article 118(4) of the Constitution, as Article 94(4) provides for independence of the Chief Justice and the other Judges In the exercise of their Judicial functions. Fair and free elections. according to the framers of our Constitution, as of the Indian Constitution, required an independent bofly to hold, conduct and supervise elections. and also required independent bodies to decide election disputes. Article 66(4) of the Constitution has conferred Jurisdiction on the Election Commission to decide the dispute as to whether a member of Parliament has. after his election, become subject to any disqualification mentioned in Clause (2) thereof or as to whether a member of Parliament should vacate his seat pursuant to Ar Jcte 70.

- Article 103 of the Indian Constitution makes a similar provision for decision on such dispute by the President after obtaining opinion of the Election Commission. So. in substance the disputes as to the disqualification of members of the legislatures are to be decided by the Election Commission tn India.

This Is the Constitutional scheme for holding Parliamentary elections and taking decisions on election disputes by the Election Commission and the Election Tribunal’. The detailed provisions for holding elections of the members of Parliament by the Election Commission have been made in the representation of the people Order. 1972(PO 155/72 of 1972) The said provisions cover the election processes beginning from call Ing for nomination papers and ending with the publication In the official Gazette the names of the returned candidates In each Constituency. Provisions have also been made for trial of election petition calling in question the election of any member. The election petition Is to be presented to the Election Commission, which is to appoint Election Tribunals for the trial of election petition. A person, who is or has been District Judge or an Additional District Judge Is qualified to be the member of the Election Tribunal

The foregoing analysis of the Constitutional Provisions and the election laws shows that the Government has no role to play In holding elections of the members of Par liament. except to make avail able such staff aa may be necessary for the discharge of the functions of the Election Commission So It is a mistake to suppose that the elections are held by or under the Government

As pointed out by Mr Abdus Salam Talukder. besides conducting parliamentary elections In 1991 the present Chief Election Commissioner (CECI also conducted polls of some 4000 Union Parishads. about 100 municipalities and four City Corporations The CEC also successfully con ducted 16 by elections of the Jatiya Sangsad Assuming that a caretaker Government Is formed for a period for holding the general election of the members of the Parliament can It be kept In office for holding by election. If and when necessary, and for holding elections to the local bod les ?

The institution of Election Commission Is a basic feature of our Constitution and the institution Is vital In a demo cratic society for ensuring free and fair elections If the Elec lion Commission lac ks any capacity in any respect to dis charge its function indepen dently in the true sense, its deficiency of power may be met by legislation In the Par liament In consultation with the Election Commission, whic h is in the beet position to point out the loop holes In the election law. Mr Rashed Khan Menon has correctly touched on the point by saying that the question of a caretaker government is not the ultimate point. Their aims should be focussed on an independent Election Commission. The Constitution gives a lot of power to Election Commission but not as much as is needed. The leaders of the political party in power also appear to be agreeable to strengthening the Election Commission for the sake of fair and free elections. This can be done by amending the election law on the floor of the Parliament.

While demanding election under a Caretaker Government the political leaders have in their minds the last Parliamentary election held on 27.2.1991. when Chief Justice Mr. Shahabuddln Ahmed performed the functions of the President In his capacity as Vice-President appointed by the out going President Mr Ershad in the vacancy caused by the resignation of the then Vice-President Mr Moudud Ahmed. This was done in order to enable Mr. Ershad to tender his resignation to the Vice-president within the Constitutional frame existing at that time (Presidential system of Government), though Mr Ershad had to resign in the face of the country-wide popular upsurge. The Chief Justice accepted the appointment in compliance with the ardent call made by the three main political alliances and parties to take the reins of a neutral and impartial Government till the establishment of an elected democratic Government. This stop-gap arrangement for transfer of power from the illegal and undemo- cratic Government to an elected Government within the Constitutional Scheme existing at that time had nothing to do with the holding of elections of the members of Parliament by the Election Commission. as It did all the same, despite the change of Government. So. the proposition for Public Debate ought to have beert whether there should a neutral Government during the time of the next election, as pointed out by Mr Moudud Ahmed.

The Twelfth Amendment of the Constitution changed the whole complexion of the form of Government providing for the method of transfer of power ko the successor Government after Parliamentary electiorg Parliamentary form of democratic Government has been broughl about by the Twelfth Amendment of the Constitution. In the present system, a Prime Minister may tender resignation ts the President who is a party man. The President can resign by addressing to the Speaker, who has also been elected by the party commanding majority In the Parliament. There Is no scope for appointing a Vice-President as before.

So. the demand for a Caretaker'Government during the period of general election does not fit in with the present Constitutional provisions and Its spirit, and so It has no legal basis. It being repugnant to the constitutional provisions for transfer of power.

In India since the commencement of the Constitution In 1950 several elections of the Parliament and the State Legislatures Including by-election s to those Assemblies were held, but never any question of having a caretaker Govern ment was raised for ensuring free and fair elections On 26th May last by-elections in 12 In dlan states and for seven seats to the Lok Sabha were held But none expressed any doubt about the independence and integrity of the Election Com mission But the necessity for a Caretaker Government was not felt The question of having a Caretaker Government pend Ing elections was never raised in America and England the latter being mother of Parlla mentary democracy

The demand lor a Caretaker Government has been raised by the opposition parties aftei the by election In Magura 2 Con stituency Election may be rigged and the election of fences may be committed for whlch legal remedy la available In the appropriate forum set up by law

In any caae generalisation on the basis of a single In stance, not to the liking of the ojiposition parties in the face of earlier general election and by elections la a leap In the dark and It is too risky to ask the nation to embark on such an uncertain course ol action

To have a Caretaker Gov ernment by amending the Constitution will imply (a) presumption that EC is not independent and is subject to influence by the party in power during election: (b) the Government officials engaged by the EC for election ‘duty are prone to be influenced by the Party in power; (c) the candidates and their election agents are inclined to and can adopt unfair means to win the election. violating election laws in collusion with the officials concerned: (d) that'the voters are not capable of casting their votes by secret ballot In favour of the candidate of his choice: (e) that the counting of votes in presence of the candidates or their agents cannot be done by the Election Officials, either themselves being corrupt or interfered with by the men of the candidates: and (fl that the party In power has no respect for election laws and will rig the election defying all the canons to remain in power. So. the Installation of a Caretaker Government for the purpose of holding election will put a stigma on the character of the. different classes of persons concerned In hoklinjpelection. and make our nation a subject of ridicule in the eyes of the International communities for our failure to develop a democratic culture.

As the Election Commission is indispensable for holding elections our concern should be to cure the deficiency in its power to ensure free and fair elections. And for that purpose Article 120 should be amended to provide for appointment of permanent staff of his office by {he Chief Election Commissioner himself and the additional staff required at the time of holding elections may be made available by the President. Act No. 13 of 1991 (the Control and Discipline of Election Officers Act) should be suitably amended in order to give Summary jurisdiction to the Chief Election Commissioner (being a judge of the Supreme Court) to punish offenders instead of his lodging complaints to a Magistrate. Power .should also be conferred on him for drawing proceedings for contempt for violation of his lawfirl order. For the disposal of Post-elec tion disputes the forum (Election Tribunal) should be created by statute instead of placing the appointment of Election Tribunal tn the hands of Chief Election Commissioner. A Bench of High Court Division should be invested with jurisdiction to hear and dispose of election petitions. In India the jurisdiction of the High Courts to hear election petitions is still continuing, as Article 323 B of Indian Constitution providing for setting up Tribunals could not be implemented so far. By amendment of the Representation of the People Act. 1951 (India) In 1966 the jurisdiction for hearing election petition was transferred from Election Tribunal to the High Court, sitting as a statutory Tribunal.

All these matters for ensuring fair and free election are to be discussed and decided on the floor of the Parliament, and the party in power cannot be coerced to yield to a demand. which is not contemplated by the Constitution, by adopting extra-Constitutional measures. The gherao of the Secretariat on 7th April last for forcing the government to accept the demand led to the Injury of Mr Abdus Samad Azad, the Deputy Leader of Opposition in the Parliament and the loss of two Innocent lives for no fault of their own.

The Opposition political parties also boycotted the last session of Parliament and are thinking of remaining absent from the ensuring budget session of the Parliament. This amounts to sabotaging the Constitution and hampering the functions of Parliament A session of Parliament Is not a private function arranged by the Prime Minister so that the Invitees could refuse to participate in the function finding faplt with her Invitation or otherwise. It Is the constitutional obligation of all the members of Parliament to attend the session and discharge their function In public inter esl for which they have been elected Law makers should not be the law breakers Since the hon ble members of Par liament are refusing to partici pate In the sessions of Parlla ment. the people who elected them, may demand that the boycotting members refuse to accept their allowances for the period of their boycott In all fairness they should do It In public Interest The members of Parliament after their elec tion have taken oath to faithfully discharge the duties of their Office "Die honble members are expected to be true to their oath of office

The writer Is a former Judge oj the High Court Diet stat<