By Dr. Gyan Pathak
Supreme Court’s refusal to stay implementation of Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 has shattered the dream of the people for a free and fair Lok Sabha Election 2024, though the court has agreed to hear the pleas against the newly enacted law, but in April, when the country would already be undergoing election process under an Election Commission of India of PM Narendra Modi’s choice and power.
Under the new law notified in December 2023, Chief Justice of India has been kicked out from the appointment committee, damaging the neutrality of the entire appointment process of the Election Commissioners, and putting the powers, de facto, fully in the hands of the government. Since one of the Election Commissioners is completing its terms in February 2024, ie just before the election process starts, the issue of reconstituting the ECI has become important. The government would either reconstituted the ECI or just extend the terms of the retiring Election Commissioner.
There is special significance to the issue because under the new law only Chief Election Commissioner is granted protection from removal who can be removed only through impeachment, but other two election commissioners can be removed on the sweet will of the President, following a recommendation of the CEC. Since the other two election commissioners are not entitled for such legal protection, a sword of the executive or the CEC will be hanging on their head. How can they secure free and fair election when they themselves will be under such an undue pressure from the Executive?
The question is pertinent also in the background that the opposition has been alleging for a long time that Modi government has been using ECI as tool of the executive, and their Constitutional independence have been subjugated. One can recalls, how two years ago on November 16, 2021, the CEC and the two other Election Commissioners met Prime Minister Narendra Modi in his office, despite voicing their reservations about it. PMO later clarified it was an “informal interaction”. However, it is to be noted that the “informal interaction” took place a day after the electoral body received a letter from an official of the Union Ministry of Law under which Election Commission is administratively placed. It was written in the letter that Prime Minister Narendra Modi’s Principal Secretary will preside over a meeting on a common electoral roll and “expects CEC” to attend it.
Given this background the question remains as to how much independently the ECI, the Constitutional body functions independently from the executive, while they are expected to maintain a distance from the government, in the interest of free and fair election in the country? Supreme Court of India in TN Seshan vs Union of India case had stressed in its order in 1995 on the need for the ECI to remain independent.
There has always been allegation against PM Modi led government of using ECI as their tool, while a research paper published by an Assistant Professor Sabyasachi Das of Ashoka University has also found “irregular pattern” indicating manipulation in 2019 Lok Sabha election results and involvement of even “electoral officials”. EVM manipulation is also suspected, and opposition INDIA alliance has demanded supplying of VVPATs to all voters so that they can find if the machine polled correctly, and also counting all VVPATs and tallying with EVM votes. ECI has not responded yet, and not even given time to opposition for a meeting, which remains a mystery.
It is in this backdrop, there was a great hope on Supreme Court of India, that it would intervene when there is time. However, SC has refused to stay implementation of the new law on January 12 that empowers the government but weakens the ECI, while also kicking out Chief Justice of India from appointment process, though the bench comprised of Justice Sanjiv Khanna and Justice Dipankar Datta agreed to hear the pleas of the petitioner Jaya Thakur in April.
Appearing for the petitioner, senior advocate Vikas Singh argued that the new law was a violation of the doctrine of the separation of powers, which formed a basic structure of our Constitution. It was also argued by the petitioner that the new law also violates the principle of free and fair election. Under the new law a search committee headed by Union Law Minister would recommend names to the selection committee consisting Prime Minister, a Union Cabinet Minister, and the leader of opposition or the leader of the largest opposition party in the Lok Sabha.
Selection committee is empowered to regulate its own procedure and even consider any person other than those suggested by the search committee. Obviously, Prime Minister would be calling the shots. Chief Justice of India has also been removed from the committee, a mechanism that was established after a Supreme Court Constitution bench order on March 3, 2023, which said that Election Commissioners and the Chief Election Commissioner will henceforth be choses by a panel comprising the Prime Minister, the leader of Opposition and Chief Justice of India, till the Parliament passes a law.
Within five months by August, Modi government came with a Bill that has now been passed in the winter session of the parliament in December, removing CJI from the appointment committee. The March Judgement read, “… An unrelenting abuse of the electoral process over a period of time in the surest way to the grave of the democracy … The election commissioners including the CEC, blessed with nearly infinite powers and who are to abide by the fundamental rights must be choses not by the Executive exclusively and particularly without any objective yardstick.”
The present petitioner has said that the new law violates the spirit of the constitution and also of the earlier judgement and the principle of free and fair election. Another PIL has also been filed in the Supreme Court last week seeking for setting aside of the December 28 gazette notification, and prayed for implementation of an independent and transparent selection system, constituting a neutral committee, and inclusion of CJI in the selection panel. (IPA Service)
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