India’s Election Watchdog and the Struggle for Free and Fair Polls

The “Every Election is Crucial” slogan has gone blunt over time, but in this crucial moment for our democracy, we must revive its sharpness. The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, should ring loud alarm bells. It has been introduced in the Rajya Sabha and is expected to be presented before the Lok Sabha during the ongoing special session.

The Bill has come under severe criticism since its inception, as the Chief Justice of India, DY Chandrachud, was excluded from the selection committee for the Chief Election Commissioner (CEC) and other Election Commissioners (ECs).

The Chief Justice was included in the committee along with the Prime Minister and Leader of the Opposition under the direction of the Constitution Bench of the Supreme Court in the Anoop Baranwal vs Union of India case as an interim measure. Earlier, the President was empowered to appoint the CEC and ECs with the recommendation of the Cabinet.

If the new Bill becomes law, a committee chaired by the Prime Minister and a Cabinet minister nominated by the Prime Minister and the Leader of the Opposition in the Lok Sabha will select the CEC and ECs. The contours of the selection would be confined to a five-member panel prepared by a search committee consisting of the Cabinet Secretary and two Secretaries, further paints a grim picture of the selection process.

It creates a no-holds-barred scenario for those at the helm of affairs, as the Opposition leader could be easily reduced to a mute spectator. It’s noteworthy that the next vacancy in the commission arises in February. The government has put the legislation process in top gear with the general election approaching.

Alarmingly, the proposed legislation has overlooked the Anoop Baranwal ruling. The Supreme Court verdict is not binding on Parliament, as judicial review is not a means to usurp parliamentary sovereignty but only part of a “system of checks and balances” to ensure that constitutional functionaries do not exceed their limits, as held in Kesavananda Bharati.

The question is whether the Bill aligns with the constitutional provision concerning the selection process of the poll panel as Anoop Baranwal has effectually interpreted the crux of the provision and presented it before the government, even in the form of requests or appeals to be considered while legislating.

Constitutional Ethos Thrown to Winds

Article 324(2) of the Constitution states that the appointment of the CEC and ECs shall be by the President, subject to laws made by Parliament. However, no law has come into force, as foretold by the framers of the Constitution.

The Anoop Baranwal case was in response to a detailed hearing in several writ petitions that sought more transparency in the appointment and functioning of the Election Commission by interpreting the objectives of Article 324(2). To make the selection procedure more transparent and just, the petitioners urged, relying on authoritative reports, that there should be a collegium system/selection committee and a separate secretariat with rulemaking powers similar to the Supreme Court.

The relief sought in the Association of Democratic Reforms petition was a declaration that the current procedure of the Executive alone being vested with the authority to select the CEC and ECs violates Articles 14 and 324.

The Constitution Bench unanimously concluded that in the unique nature of the provision, it is concerned with the devastating effect of letting appointments remain solely in the hands of the Executive and that the time is ripe for the court to lay down norms.

It was held that unlike other appointments mandated by the Constitution, it was intended throughout that appointment exclusively by the Executive was to be a transient or stop-gap arrangement, and it was to be replaced by a law made by Parliament that would take away the exclusive power of the Executive.

The court made it evident that its conclusion is clear and inevitable, and the absence of law, even after seven decades, points to a vacuum. The Constitution Bench emphatically held that they are concerned with the need to take the appointment of the members of the Election Commission out of the exclusive hands of the Executive, which has an interest in perpetuating itself in power.

It was also held that while the court is neither invited nor, if invited, would it issue a Mandamus to the Legislature to make a law, as contemplated in Article 324(2), that it may not be the end of the court’s duty in the context of the provision in question as the Bench has already found that core values of the Constitution, including democracy and the rule of law, are being undermined.

While stipulating an interim arrangement capable of maintaining a power equilibrium, the court appealed that either the central government or Parliament may consider a separate secretariat to the commission funded by the Consolidated Fund of India to ensure absolute independence of the poll panel.

Though the mechanism prescribed by the Supreme Court was an interim one, it was in tandem with the constitutional principle of ‘checks and balances’ that mandates that power should never be allowed to concentrate on any of the branches of the State and one branch should act as a corrective force against another.

The judgement holds that the Election Commissioners, including the Chief Election Commissioner, blessed with nearly infinite powers, must not be chosen exclusively by the Executive, particularly without any objective yardstick.

The reasoning and apprehensions of the Bench are crystallised in the judgement: “It is equally clear that Article 324 has a unique background. The Founding Fathers contemplated a law by Parliament and did not intend the Executive exclusively calling the shots in the matter of appointments to the Election Commission. Seven decades have passed by political dispensations of varying hues, which have held the reigns of power have not unnaturally introduced a law. A law could not be one to perpetuate what is already permitted, namely appointment at the absolute and sole discretion of the Executive.”

The court had naturally hoped that the judgement would be a guiding force for the central government while framing the law, as it made clear: “We may also indicate that this judgement provides a situation where this court has laid down norms, even in the constitutional realm”. Had it been done, it would have been a law upholding the constitutional ethos. But the Centre has developed a mechanism where the ruling dispensation with a brute majority has thrown the principles and appeals of the court to the winds.

TN Seshan: Strengthening Election Commission

The Election Commission and its role in preserving democracy was properly introduced to us by TN Seshan during his tenure as CEC. Within a short period, he identified over a hundred common election malpractices, such as inaccurate electoral rolls, mistakes in setting up polling stations, coercive electioneering, spending more than the legal limit, using goons to snatch polling booths, general abuse of authority and started preventive measures against it.

The government came under severe pressure when he announced no elections would be held after January 1995 without issuing identity cards to the voters, and the Supreme Court had to intervene to resolve the stalemate. Seshan initiated the practice of engaging election observers.

Keeping track of election expenditures was made strict during his tenure, and reports say many candidates were disqualified for three years for not submitting their accounts in the 1993 General Election. After his tenure, he said he never reformed the system but only implemented the law.

Modi-Lyngdoh Stand-off

JM Lyngdoh led the poll panel in the path trodden by Seshan but confronted greater obstacles in a changed political scenario. Like Seshan, he was honoured with the Magsaysay Award in recognition of his contributions to strengthening the foundations of secular democracy.

He was hailed by the award board for making the Election Commission’s constitutional obligation to hold free and fair elections its obsession. The board admired his contribution to holding Assembly elections in troubled Jammu, Kashmir, and Gujarat in 2002.

In Jammu and Kashmir, Lyngdoh started his mission when the conflict with Pakistan and the separatist violence was at its peak, and almost everyone gave a unanimous verdict that an election in those conditions was impossible. Unfazed, Lyngdoh asked the military to step aside and entrusted the law and order to police and paramilitary forces.

Around a hundred new polling stations were set up, and people were urged to vote fearlessly. Voters responded to the call, and there was a 47% turnout. When people chose ballots over bullets, it painted the larger picture that peace is possible in the valley.

In Gujarat, Lyngdoh confronted an even tougher task when the government was dismissed after the 2002 riots, and Lyngdoh refused to succumb to political pressures to hold immediate elections. He resolved it was inappropriate to hold elections while thousands languished in relief camps in a dread-filled atmosphere. In retaliation, the BJP camp unleashed personal attacks against him on public platforms.

Lyngdoh prepared the ground for a free and fair election in Gujarat by transferring civil servants and police officers accused of complicity in the violence, prohibiting communal propaganda, and installing special polling stations at relief camps. There was a 61% turnout in the tightly policed election, and even Lyngdoh’s critics agreed they were free and fair. The Magsaysay Award Board recognised Lyngdoh’s “convincing validation of free and fair elections as the foundation and best hope of secular democracy in strife-torn India”.

As the 2024 General Election approaches, there are many wounds of communal conflicts across many parts of the country. The ruling dispensation cannot afford another Lyngdoh to make free and fair elections the foundation and hope of a secular democracy. That might be why it has attempted to turn the election commission into a farce by filling the poll panel with subservient subordinates.

The proposal to put the service conditions of the CEC and ECs on par with the Cabinet Secretary and not a Supreme Court Judge, as is the case now, is a clear indicator. The Supreme Court has made prophetic remarks in Anoop Baranwal that the Chief Election Commissioner enjoys the protection of a Supreme Court judge in matters of removal from office to ensure the independence of the commission from external pulls and pressures. It even said the same protections should be extended to the Election Commissioners.

Anti-farmer Laws, Anti-worker Labour Codes

From the battle cry that each election is crucial, we are moving towards a setting where we must battle for free and fair elections. That is why the Constitution Bench of the Supreme Court categorically held it would not be in the best interests of democracy if the power to appoint the CEC and ECs was confined to the exclusive domain of the Executive.

The court was not referring to a particular party or coalition but anybody in power. So, imagine what would become of our democracy when such sweeping powers are left to the current regime, accused of power excess. This explains the apprehensions about the independence of the election commission being sabotaged.

The success of India’s grand democratic experiment is due to the Constitution, born on the altar of the freedom struggle. Today, the progressive democratic forces have a historical calling to protect it. Struggles must be initiated inside and outside the legislatures for this. People must know that their power to be the masters of their destiny is being robbed.

The organised strength of people has proven numerous times that the brute majority of the ruling class cannot impose anti-people policies. The fighting spirit of the masses that defeated the anti-farmer laws and anti-worker labour codes must be unleashed to safeguard free and fair elections and democracy.

The author is a lawyer practising in the High Court of Kerala. The views are personal.