By Dr. Gyan Pathak
Only five months after the judgement of the Supreme Court of India, Prime Minister Narendra Modi led Centre has come out with a bill that not only removes the Chief Justice of India from the committee that was empowered to appoint Election Commissioners of Inda, but also kills democracy itself by providing absolute power to the Prime Minister of India. Ironically, the Elections Commission is meant to democratically conduct free and fair election in the country.
The Bill titled the “Chief Election Commissioner and other Election Commissioners (Appointment Conditions of Service and Termes of Office) Bill 2023 says that the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) shall be appointed by the President of India on the recommendation of a Selection Committee consisting of the Prime Minister as chairperson, his nominee Union Cabinet Minister, and the leader of the opposition or the leader of the largest political party in the House of the People (Lok Sabha).
Effectively, in the three member appointment committee, the ruling political party will have two members and one member would be from the opposition. There would be no independent member in the committee. It means the ruling establishment would have the majority voice and they can overrule any objection of the leader of the opposition whatsoever. Since the Prime Minister’s nominee would be the other member, the PM automatically gets the absolute power to appoint CEC and ECs. There is a lack of democracy in the constitution of the Committee itself.
In a historic judgement on March 3, 2023, a five-judge constitution bench of the Supreme Court of India headed by justice KM Joseph which included other judges Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar, had ruled that Election Commissioners and the Chief Election Commissioner will henceforth be chosen by a panel comprising the Prime Minister, the Leader of the Opposition (LoP), and the Chief Justice of India (CJI), till the Parliament passes a law on the appointments of the CEC and ECs.
The judgement was delivered against the backdrop of frequent complaints by opposition parties alleging bias on the part of ECI, which was allegedly used as a tool to serve the ruling establishment. The ruling establishment have been appointing the ECs and CEC until then. The matter had come in the form of litigation in the Supreme Court of India. The five judge bench had then divested the central government of the absolute power to appoint the CEC and ECs, and had shoot down the Centre’s argument that the court must not intervene in the selection mechanism.
The present bill brought by the Modi government did fist thing to kick out the Chief Justice of India from the appointment committee, who was the only apolitical and neutral member in the committee. Now the bill has proposed, Prime Minister’s nominee Union Cabinet Minister in place of Chief Justice of India, who will obviously an interested party in favour of the Executive and the Prime Minister.
Since the Lok Sabha election is scheduled to be held before May 2024, and one of the Election Commissioners Anup Chandra Pandey is completing his term in February 2024, while the other Arun Goel’s appointment as Election Commissioner has been challenged in the Supreme Court due to procedural concerns, Modi government needed such a law as to have its choice of persons as Election Commissioners, which would have been difficult had there been CJI in the appointment committee.
There has always been allegation against PM Modi led government of using Election Commissioners as their tool, and most recently, a researcher from Ashoka University has said that he had found evidence of “manipulation of election results” of 2019 General Election. He had also claimed involvement of electoral officials. Congress MP Shashi Tharoor has asked the Election Commission and the Government of India if they have any answer for the finding in the research. However, neither the Centre nor the ECI has come out with any answer, while BJP’s troll army have been very active against the researcher.
In this backdrop the present bill acquires significance. Supreme Court had brought the news system of appointment by a committee until the parliament passes a law. The Centre has now come with a bill, but killing the very spirit of the judgement delivered by Constitution Bench of the Supreme Court of India.
“The ballot is more potent than the most powerful gun… An unrelenting abuse of the electoral process over a period of time is 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 chosen not by the Executive exclusively and particularly without any objective yardstick,” the Constitution Bench had declared.
The present bill that kills the democracy has obviously no valid objective and democratic yardstick, which goes against the spirit of the very objective of the formation of the Election Commission of India and also the judgement of the Constitution Bench.
It should be noted that the Congress president Mallikarjun Kharge had said at the time of judgment that appointments of Election Commissioners should no happen like in the CBI where, in spite of dissent, government select their own candidates.
It should also be noted that CEC has been 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. Hence, a sword of the executive or the CEC always hangs on the Election Commissioners. How can they assure free and fail election when they themselves are under fear of the executive’s sword?
India needs a comprehensive law regarding Election Commission of India to enable it to conduct free and fair polls in the country, and to begin with we must have fair and democratic appointment process of its Election Commissioners. (IPA Service)
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