The fundamental contours of our democratic institutions are either facing an existential threat or their integrity is being renegotiated. The Election Commission is no exception. Recently, while sensing the growing partisan trends, the Supreme Court admitted and referred to a five-judge constitutional bench a plea seeking a collegium system to appoint the chief election commissioner (CEC) and election commissioners (EC). It is a welcome step.
“Free and fair elections” are an integral part of constitutional philosophy. It was declared as a basic structure of the Constitution by the Supreme Court in Indira Nehru Gandhi vs Raj Narain (1975). It was reiterated in T N Seshan, CEC of India vs Union of India and Ors (1995) and in Kuldip Nayar vs Union of India & Ors (1996).
In our view, the freeness and fairness of elections are measured by not only electoral rules, regulations, processes and their application but also by the impeccability, autonomy and effectiveness of the institution conducting the elections. If the elections are unfree or unfair or both, it means the integrity of the electoral machinery is fundamentally compromised. This happens when the executive appoints ECs. To resist executive pressure, the appointment and removal of election commissioners must be freed from the prerogative of the executive.
Constitutionally, the Election Commission enjoys enormous powers. It has been given the responsibilities of superintendence, direction and control of the conduct of elections. This responsibility covers powers, duties and functions of many sorts, depending on the circumstances guaranteeing the wholesomeness of the electoral process. To accomplish this objective, the Election Commission can draw upon all incidental and ancillary powers. Nevertheless, the fairness of the commission has always been doubted. It is largely on account of the executive’s role in the composition, appointment and removal of election commissioners.
First, Article 324 (2) provides that the Election Commission shall consist of a CEC and such number of other ECs, if any, as the President may, from time to time, fix. It means the numeric composition of the Election Commission can be changed at the will of the President. It has happened in the past on many occasions.
The composition of the Election Commission was changed in 1989, 1990 and 1991. The politics behind this change was covered in J M Lyngdoh’s book, The Chronicle of an Impossible Election and S Y Quraishi’s An Undocumented Wonder. However, the three-member composition of the commission has survived since 1993, with a distinction between CEC and the ECs.
Second, the appointments of CEC and ECs are exclusively dependent on the will of the executive. Article 324 (2) mandated that “subject to the provisions of the law made by parliament”, the appointment of the CEC and other ECs shall be made by the President of India (effectively by the union government). Despite this express mandate, no government has made the law. As a result, governmental interference in the working of the commission has continued.
Third, 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 the ECs as they can be removed on the recommendations of the CEC. Sadly, the Supreme Court upheld this practice in T N Sheshan vs Union of India case.
There is a need to contain the authoritarian instinct to influence the constitutional scheme. But the Constitution cannot defend itself. Until the Supreme Court resolves to save the institution, executive interference in the working of the Election Commission will not end.
Integrity is the foremost virtue of a democratic institution like the Election Commission. But in practice, it is ignored with disheartening frequency. For example, the appointment of an IAS officer who had served as chief secretary when Narendra Modi was chief minister of Gujarat was bound to be questioned.
Erosion of independence
It appears that on many occasions, the Election Commission itself has been guilty of having deceived itself and the citizenry by allowing the government to erode the degree of independence it enjoys. For example, the commission has failed to demonstrate its independent credibility beyond reasonable doubt in the recent cases of fake news, money power, flouting of restrictions and campaigning on even polling days by the prime minister, ignoring restriction on the live broadcast of political rallies on TV channels on polling days, advancement of the union budget before elections and so on.
Will the integrity of the Election Commission be intact when election dates are announced by the BJP’s IT cell ahead of the commission? Or when the announcement of recent elections in five states was allegedly delayed to allow the prime minister to make announcements in an election rally?
It is not beyond the realm of possibility that the credibility and integrity of the ECs can be compromised. It has happened in the past and continues in the present. Things could easily get worse in the future if timely measures are not taken. At this point, the idea of a ‘collegium’ for the appointment of CEC and ECs as well as a uniform procedure for their removal seems plausible. In fact, Justice J S Khehar while hearing the same PIL observed that Parliament, by not enacting the law, was in breach of its duty and under such circumstances, the court could step in to fill the gap.
In many countries, the appointment of ECs through a robust collegium system has already become the norm. Now, a legitimate hope has been created that the Supreme Court may use its constitutional wisdom to override the executive’s discretion and find ways to preserve the independence of the Election Commission.
(Alam is Associate Professor, Maulana Azad National Urdu University; Singh is Associate Professor, National Law University Odisha, Cuttack)