Poll monitor

14 Mar 2020

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The writer is an author and a lawyer based in Mumbai.
The writer is an author and a lawyer based in Mumbai.

INDIA’S very largely free and fair electoral process was once the envy of the democratic world. This was due to the independence and integrity of the monitor of polls, the Election Commission of India. There have indeed been servile chief election commissioners too.

T.N. Seshan’s appointment as chief election commissioner in the early 1990s marked a watershed. He succeeded and carved his name in the annals of India’s election process. His successors followed suit.

The BJP regime headed by Prime Minister Narendra Modi sought one-party rule. The three-member Election Commission of India was packed with favourites. The 2019 general election to the Lok Sabha was scarred by legitimate criticisms of the commission’s partiality and supineness.

For this, the much-venerated founding fathers of the constitution are entirely to blame. Article 324 of the Indian constitution and the wide powers conferred on the commission reads thus: “(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to parliament and to the legislature of every state and of elections to the offices of president and vice-president held under this constitution … shall be vested in a commission (referred to in this constitution as the election commission).

With the ECI packed with favourites, the BJP sought one-party rule.

“(2) The election commission shall consist of the chief election commissioner and such number of other election commissioners, if any, as the president may from time to time fix and the appointment of the chief election commissioner and other election commissioners shall, subject to the provisions of any law made in that behalf by parliament be made by the president. … [T]he chief election commissioner shall not be removed from his office except in like manner and on the like grounds as a judge of the supreme court and the conditions of service of the chief election commissioner shall not be varied to his disadvantage after his appointment… Any other election commissioner or a regional commissioner shall not be removed from office except on the recommendation of the chief election commissioner.

“The president or the governor… of a state, shall, when so requested by the election commission, make available to the election commission or to a regional commissioner such staff as may be necessary for the discharge of the functions conferred on the election commission by clause (1).”

However, as the chairman of the drafting committee, Dr B.R. Ambedkar told the Constituent Assembly on June 15, 1949: “... [t]here is no use making the tenure of the election commissioner a fixed and secure tenure if there is no provision in the constitution to prevent either a fool or a knave or a person who is likely to be under the thumb of the executive. My provision — I must admit — does not contain anything to provide against nomination of an unfit person to the post of the chief election commissioner or the other election commissioners. I do want to confess that this is a very important question and it has given me a great deal of headache ...

“In the USA they have solved this question by the provision contained in article 2 section (2) of their constitution whereby certain appointments which are specified in section (2) of article 2 cannot be made by the president without the concurrence of the senate; so that so far as the power of appointment is concerned, although it is vested in the president it is subject to a check by the senate so that the senate may, at the time when any particular name is proposed, make inquiries and satisfy itself that the person proposed is a proper person. But it must also be realised that, that is very dilatory process, a very difficult process. …

“The drafting committee had paid considerable attention to this question because, as I said, it is going to be one of our greatest headaches and as a via media it was thought that if this assembly would give or enact what is called an instrument of instructions to the president and provide therein some machinery which it would be obligatory on the president to consult before making any appointment ... the difficulties ... may be obviated....”

In 1949, at the last stage of the drafting of the Indian constitution, the weary members of the constituent assembly dropped the frail reed that was the instrument of instructions.

The Election Commission of India is not a mere administrative institution. It is a quasi-judicial body charged with the duty of deciding specified disputes, for example disputes regarding election symbols. That is why its members’ tenure in office is independent of the will of the regime of the day. The chief can be removed only by the same process that applies to the removal of a judge of the supreme court. Sheer logic, good sense and experience of the past dictate that the process of appointment should also be the same. It should not be left to the sweet will of the politicians in power.  

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, March 14th, 2020