Political Diary
New Delhi, 30 November 2022
SC Halla Bol On ECs
HOW DO YOU EVALUATE COMMISSIONERS?
By Poonam I Kaushish
In
this silly poll season amidst accusations slugfest between Parties in Modiland
Gujarat, a five-judge Constitution Bench of Supreme Court’s quietly did a halla bol on “haste” and “tearing hurry”
with which Election Commissioner (EC) Arun Goel was appointed, with his file
moving at “lightning speed” in 24 hours while hearing petitions seeking
Collegium-type body to appoint ECs and Chief Election Commissioner (CEC) last
week.
“Goel’s
application was made 18 November, it moved same day to officials, Prime
Minister recommended him same day to President, it was cleared same day and he
appointment same day…File hasn’t travelled even 24 hours. Why this urgency as
vacancy happened in May?” What kind of
evaluation was there? Given in Government offices, files usually move slowly.”
Adding,
“We are not questioning merits of Goel’s credentials but process.” “Show us
mechanism you adopted in making appointment or is it on Council of Ministers
recommendation. We are telling you openly, you (Centre) are violation Section 6
of 1991 Election Commission Act.”
Notwithstanding,
Attorney General Venkataramani reply the mechanism followed “time-tested
convention”. List of serving and retired officials in Secretaries position is
prepared from which panel of names is prepared for Prime Minister and
President.
The
Prime Minister after consideration recommends one name to President. “That’s
how the system works.” The ECs appointment follows seniority and senior among
two ECs becomes CEC. It is not a pick-and-choose at all.” A dissatisfied Court
asserted CEC should be someone “with character” who “does not allow himself to
be bulldozed” like ex-CEC late Seshan.
Kudos
to Apex Court for underscoring EC's functioning and appointment of Commissioners.
Questionably, can someone picked by Executive be reasonably expected to stand
up to it? Just because Constitution did not cast an indispensable mandate on
Parliament to frame a law does that mean Court cannot ask important issues of
separation of powers and Executive domain?
Undoubtedly, successive
Governments have destroyed Commission’s independence and Parties exploited
Constitution’s silence by picking people with truncated tenures to hold
influence over them. Till date both EC and Prime Minister’s office is silent on
CEC and ECs’ joining “online interaction” called by it November last. Again,
during Covid, the Commission imposed restrictions on electioneering only after Prime
Minister completed his campaign. Or its unwillingness to censure BJP leaders
during last Lok Sabha poll, delaying Rajya Sabha poll in Kerala to consider a
reference from Law Ministry.
Pertinently,
the Commission draws its authority from Article 324 which states: The powers of
“superintendence, direction and control of elections” is vested in an EC. The
CEC and ECs are appointed by President to a tenure of six years, or up to age
65 years, whichever is earlier. The Constitution does not fix size of the
Commission. Article 324(2) says “EC shall consist of CEC and such number of
other EC’s, if any, as President may from time to time fix”.
From
its inception 1950 EC had just CEC. But in October 1989 before Ninth General
Election then Prime Minister Rajiv Gandhi appointed two more ECs making it a
multi-member body. The Congress Government was criticized for trying compromising
CEC Peri Sastri and Commission’s independence. In January 1990, VP Singh’s
National Front Government amended rules, reverting EC a single-member body
again.
However,
in January 1994 Narasimha Rao’s Government passed The Chief Election Commissioner
and Other Election Commissioners (Conditions of Service) Amendment Act, 1993
providing for two more Commissioners. Since then EC has three members with all having
equal say in decision making.
But
it needed a firebrand like Seshan who took over as CEC in 1990 who actually
put Nirvachan Sadan on the electoral map by taking on Governments and leaders
head-on by reading the riot act. He first petitioned Supreme Court against his two
Commissioners Krishnamurthy and Gill. Alleging, “the two Commissioners were
appointed not on bonafide grounds of volume of work but to stall functioning of
the Commission.” He accused Krishnamurthy of being a “close family friend of
Prime Minister Rao,” resulting in Court asserting, “institutions should not be
reduced to mockery”.
In May 1993, Seshan
refused to hold Lok Sabha, State Assembly bye-polls and West Bengal’s Rajya
Sabha poll over EC’s jurisdiction over Government officials on election duty and
Commission’s right to ask Government for a particular officer or staff to
discharge its functions till it agreed.
In
1994 he told
Government to purge two Cabinet Ministers Sitaram Kesari and Kalpnath Rai for trying
to influence voters in Congress’s favour during elections. Kesri for extending
reservation to Muslims and Rai for flooding poll-bound Karnataka and Andhra
with free sale sugar. Adding, “It is a pity laws don’t provide for penal action
against Ministers.”
In 1995, he postponed
Bihar’s last phase of election as Chief Minister Lalu Yadav was caretaker Chief
Minister after Legislative Assembly’s expiry which he said was undemocratic. An
agitated Lok Sabha directed the Centre to convey its deep concern over repeated
polls postponement. But Seshan refused to buzz.
In 2002 another CEC Lyngdoh
was infantile terrible for
politicians. In July 2002 Gujarat Governor Bhandari dissolved the Assembly nine
months before its term expiry. A brazen act to force EC to hold early elections
as Constitutional mandate prohibits more than six-month gap between two House sessions.
Lyngdoh ruled out early elections which was endorsed by Supreme Court.
tRue
this is not to detract from the Commission’s commendable work of not only
overseeing the world’s largest electoral process but also formulating and
implementing rules to ensure the poll field remains level and unfailingly ensures voters writ carries the day.
However,
despite EC being a Constitutional body, process of appointing ECs remains
unclear. In the last seven decades Parliament has failed to formulate a law,
instead successive Governments have destroyed the Commission’s independence,
arrogated power to itself and Parties have exploited Constitution’s silence by picking
people with truncated tenures to hold influence over them.
Like
the Court emphasized it is the manner of appointment, not duration of tenure
that holds key to greater transparency. Perhaps the time has come to correct
anomalies in appointing CEC and ECs as the Constitution is silent on this.
One
idea is of including Chief Justice in the appointment committee to ensure
“neutrality”. Another is expanding EC’s members pool to members beyond civil
service. A shift towards a bipartisan, consultative appointment process is
desirable like the CVC Act 2003 which empowers a committee comprising Prime
Minister, Chief Justice and Leader of Opposition to recommend central vigilance
commissioners. These three also make recommendations for appointment to Lokpal
body and CBI director under Lokpal Act 2013.
At a time when fair
elections are facing challenges of misinformation, hate speech, money and
muscle power, greater transparency in Election Commissioners appointment can
only add to the Commission’s reputation of integrity. Time now for the Executive,
political actors, legislative and judicial branches to come together, draft a
framework and endavour to make the EC not only transparent but also seen as
being above any influence. This will help democracy.
The
moment demands Commission self introspect and make sure it reads the
Constitution not in isolation but in totality. The question that needs urgent answer:
Is how election should be held and democracy function? Will it depend on Government
anointing its favoured or former bureaucrats A B or C to the Commission? Or
will Constitutional bodies act independently for the good of the nation? -----
INFA
(Copyright, India
News & Feature Alliance)
|