An Election Commission That Failed Itself

The ‘apolitical’ institutions of India in the past five years have become more political and have slowly turned into the fanboys of the ruling establishment. They seem to exist, but like lamp posts without lamps. We must understand that a democratic society crumbles when institutions do not cherish the hope of neutrality. When institutions become cheerleaders, political leaders themselves become the institutions. There is a saying in Finnish that you cannot allow a goat to guard a cabbage patch.

Undoubtedly, India is going through extraordinary times. Never in the history of democracy has any constitutional institution surrendered without a fight, as we are seeing today. In the past five years, there has been a radical break from the past working styles of ‘apolitical’ institutions, such as the Central Bureau of Investigation, Enforcement Directorate, National Investigation Agency, Reserve Bank of India, Indian Army, Navy, Air Force, judiciary, and educational. These institutions are fighting within and alongside the incumbent. The case points are CBI vs CBI, Supreme Court vs Judges, NIA vs NIA and so on.

To our disbelief, the Election Commission (EC) is no exception to this. In the 2019 Lok Sabha elections, the fairness of EC has died a thousand deaths. Be it the scheduling of the 2019 elections in seven long phases, allegedly to favour certain parties, taking timely action against violations of the Model Code of Conduct (MCC), stopping campaign keeping in view of a certain party’s campaign schedules, cancelling candidatures, transfers, posting and suspending election observers on ambiguous grounds, allowing surrogate campaigns by giving 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) went unrecorded on MCC violations eventually leading to his withdrawal from future proceedings. These are enough empirical grounds to lend support to the argument that the EC is not only failing the test of being vital to electoral democracy, but is also dashing the hopes of millions of voters who trust it to conduct free and fair elections, as constitutionally mandated in Article 324. Will the EC’s integrity be intact when its own Commissioner is not allowed to express dissent?

The EC must learn that the “freeness” and “fairness” of elections are measured by electoral rules, regulations, and their fair application, as well as the impeccability, autonomy and effectiveness of the institution conducting the elections. This not only be claimed but publicly reflected. “Free and fair elections” are not only the foundation stone of constitutional philosophy but also a ‘basic structure’ of the Constitution, as declaed by the Supreme Court’s five-judge bench in Indira Nehru Gandhi v. Raj Narain (1975). This 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 is publicly doubted, it simply means the integrity of the electoral machinery is compromised.

It is not beyond the realm of possibility that the credibility and integrity of the EC can be compromised. This happened in the ‘past’ and constinues in the ‘present’. So, how does one restore the autonomy and credibility of the 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 EC shall consist of the CEC and such number of other Election Commissioners (ECs), if any, as the President may, from time to time, fix. This means the numeric composition of the EC can be changed at the will of the President (often political), which has happened in the past on many occasions. The EC’s composition was changed in 1989, 1990, and 1991 by the President. The three-member EC is continuing with certain stability since 1993 with a distinction between the CEC and the Election Commissioners.

Second, the appointment of the 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  Parliament, the appointment of the CEC and other Commissioners shall be made by the President (effectually by the Union government). In spite of this, no government has made the law because it suits the governments in power. As a result, governmental interference in the working of the EC has continued.

Third, interestingly, the CEC cannot be removed except in the like manner and on the like grounds as a 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 the T.N. Sheshan v. Union of India (1995) case.

Until the prerogative of the executive remains arbitrary, the EC will continue to fall in line with the ruling establishment. And the poll panel will remain guilty of having deceived itself and the citizenry by succumbing to government. In the age of populist majoritarian moment, expecting the 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 a ‘collegium’ for appointment of CEC and other Election Commissioners, as well as their uniform procedure for removal, are the best guarantee to ensure the EC’s independence and neutrality.

The writer is Associate Professor & Head, Department of Political Science, Maulana Azad National Urdu University, Gachibowli, Hyderabad. The views are personal.