Election Commission That Failed Itself
May 22, 2019
The apolitical institutions of India in the last five years have become more political, flag-bearers and slowly turned into the fan-boys of the ruling establishment. They seem to exist but like the lamp posts without the lamps. We must learn that a democratic society crumbles where institutions do not cherish the hope of neutrality but deceive. When the institutions become cheerleaders, the political leaders become the institutions in themselves. There is a saying in the Finnish culture that you cannot let the goat guard the cabbage patch. Undoubtedly, India is placed now in an extraordinary time. It is because never in the history of democracy has any constitutional institutions surrendered without a fight as it is seen today. We have witnessed in the last five years how the integrity of most of the apolitical institutions like CBI, CVC, ED, NIA, RBI, Army, Navy, Airforce, judiciary, educational institutions are renegotiated. There is a radical break from the past working styles of these institutions. They are fighting within and alongside the incumbent. The case points are CBI v. CBI, Supreme Court v. Judges, NIA v. NIA and so on.
To our amazement and disbelief, the Election Commission (EC) is no exception to exhibit as a partisan-free institution. In the 2019 election, it seemed the fairness of EC has died thousand times. Be it the scheduling of 2019 election in 7 long phases allegedly to favour certain parties, taking timely action against the violations of Model Code of Conduct, stopping campaign keeping in view of certain party's campaign schedules, cancelling candidature, transferring, posting and suspending election observers on ambiguous ground, monitoring election expenditure and electoral bonds, curbing fake news, hate speeches and violence, allowing surrogate campaigns by giving a nod to leaders to visit religious shrines when MCC still in force, denying counting of VVPAT and so on. Recently, the dissenting opinions of one of its commissioners, Ashok Lavasa (as being reported) go unrecorded on violations of Model Code of Conduct eventually leading to his withdrawal from future proceedings. These are enough empirical grounds to lend support to the argument that the Election Commission of India is not only failing the test of being vital to electoral democracy but also letting the hopes of millions of voters down in conducting elections in free and fair manner as constitutionally mandated in Article 324. Will the integrity of Election Commission be intact when its own Commissioner is not allowed to express dissent?
EC must learn that the "freeness" and "fairness" of the elections are measured by the electoral rules, regulations, and their fair applications as well as the impeccability, autonomy, and effectiveness of the institution conducting the elections. It must not only be claimed but publically reflected. The "free and fair election" is not only the foundation stone of constitutional philosophy but also declared as a 'basic structure' of the Constitution by the Supreme Court in its five judge bench in Indira Nehru Gandhi v. Raj Narain (1975). It was reiterated in T.N. Seshan, CEC of India v. Union of India and Ors(1995) and Kuldip Nayar v. Union of India & Ors (1996).If the fairness of elections are publically doubted, it simply means the integrity of the electoral machinery is certainly compromised. It is not beyond the realm of possibility that the credibility and integrity of the Election Commissioners can be compromised. It happened in the 'past' and continuing in the 'present'. But how to restore the autonomy, credibility and impeccability of EC? In my view, the remedy lies in freeing the appointment of Election Commissioners from the whims and prerogative of the Executive.
First, Article 324 (2) provides that the Election Commission shall consist of CEC and such number of other Election Commissioners (ECs), if any, as the President may, from time to time, fix. It means the numeric composition of Election Commission can be changed at the will of the President (often political). It happened in the past on many occasions. The composition of Election Commission was changed in 1989, 1990, and 1991 by the President. The three-member composition of EC is continuing with certain stability since 1993 with a distinction between CEC and the Election Commissioners. Second, the appointment of CEC and other ECs are exclusively dependent on the will of the Executive. The Article 324 (2) mandated that subject to the provisions of the law made by the parliament, the appointment of the Chief Election Commissioner and other Election Commissioners shall be made by the President of India (effectually by the Union government). In spite of this expressed mandate, no government has made the law. Because it suits the governments in power. As a result, governmental interference in the working of Commission has continued. Third, interestingly, the CEC cannot be removed except in the like manner and on the like grounds as Judge of the Supreme Court. But similar guarantees are not available to other ECs as they can be removed on the recommendations of the CEC. The Supreme Court upheld this practice in T.N. Sheshan v. Union of India(1995) case. Until the prerogative of the executive remain arbitrary, the EC will continue to fall in line with the ruling establishment. And Election Commission will remain guilty of having deceived itself and the citizenry by succumbing to the pressure of the government. In the age of populist majoritarian moment, expecting EC to rise above the executive line to stop eroding the degree of independence it constitutionally relishes is a difficult call. If timely measures are not taken, the credibility of this institution will be totally lost in 'future' too. In my view, the idea of'Collegium' for the appointment of CEC and other Election Commissioners, as well as their uniform procedure for removal, are the best guarantee to ensure the independence and neutrality of EC.
First published in Live Law.Disclaimer: The views expressed in this article are the writer's own, and do not necessarily represent the views of the Indian Writers' Forum.
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