Constitutional Institutions Should Not Become Political Targets: Harish Salve Criticises Opposition’s Protest Against ECI

Former Solicitor General of India and senior advocate Harish Salve has criticised the Opposition's protest against the Election Commission of India (ECI), saying political criticism should not cross what he described as the “legitimate boundaries” of politics.

Salve said political parties were free to criticise their political opponents, but constitutional institutions should not become targets of political attacks. His comments came against the backdrop of the INDIA bloc's campaign against Chief Election Commissioner (CEC) Gyanesh Kumar over the Special Intensive Revision (SIR) of electoral rolls.

On October 6, INDIA bloc leaders marched towards the Election Commission headquarters in New Delhi, where police stopped and detained several Opposition leaders, including Lok Sabha Leader of Opposition Rahul Gandhi.

The ECI, for its part, has rejected allegations of wrongdoing and maintained that decisions relating to the SIR were taken unanimously.

In an interview to ANI, Salve said, "I don't know what is going on in India. You know, even a Leader of the Opposition, unless he is convinced that he will, for the rest of his life, be the Leader of the Opposition, must realise that if someday he aspires to be Prime Minister of India, he shouldn't break everything".

Salve said that the politics is getting a little beyond what its legitimate boundaries are.

Referring to the actions of the Opposition leaders, Salve remarked, "If you destroy everything, you will have nothing to rule over. You know, always remember that. But it appears now that, you know, people feel, ‘Okay, if I can't have it, let me break it.’ That's a very short-sighted approach.”

ECI is a constitutional institution

Salve also set out his understanding of the constitutional position of the Election Commission, saying that India's constitutional framework gives different institutions authority within their respective spheres.

“The way our Constitution is structured, you have co-equal institutions. We have the Legislature, we have the elected Executive, you have the Judiciary, and the Election Commission is co-equal in the sense that in their own area, they are supreme,” he said.

At the same time, he said the Supreme Court has the final word where a constitutional institution is alleged to have crossed the limits imposed by law or the Constitution.

“Any issue in which the other institutions transgress the lines, the boundaries laid down by the Constitution or by the law, the Supreme Court has the last word,” Salve said.

He therefore indicated that the dispute over the ECI's actions could ultimately be settled through the judicial process. If the Supreme Court finds that an order or action was legally infirm, he said, it could intervene.

“If the Supreme Court finds that there's anything wrong, they will set aside the orders,” he said.

What is the controversy over ECI and CEC Gyanesh Kumar?

The immediate controversy stems from reports of differences within the three-member Election Commission over decisions connected with voter-list revision. An Indian Express investigative report alleged that Kumar took certain decisions despite objections from the other two Election Commissioners and consequently questioned his functioning as CEC. The ECI, however, has maintained that its decisions were unanimous.

What is the Form 6 issue?

Another flashpoint is Form 6, the application used to enrol new voters. The Opposition has alleged that the form was changed during the SIR exercise without proper authority. The ECI has rejected this, saying Form 6 itself was not modified and that an additional declaration was attached to it for the SIR exercise.

The Supreme Court is examining the controversy and has sought the ECI's records on how the disputed declaration came to be included.