By Sujit Bhar
Every executive overreach depends heavily on two critical elements of public life: extreme confidence, flowing from a huge mandate, and the assumption that public IQ is low and its memory is short. The issue today is of the composition and relative autonomy of the Election Commission of India (ECI) and how it has lapsed into its old, subservient and arthritic mould.
The ECI was never what people sometimes assume it to be, till one man, TN Seshan became its head and found that the Commission itself had powers that had never been used.
In an article later, Seshan, the tenth Chief Election Commissioner of India, had written about focusing on removing “the loopholes in the system”. He made it clear that “It was not that this insight was not already available with the commission…” which meant that there never was a will to make the change. These, he said, were ways in “which the integrity of election (sic) was being compromised.”
So, he made a list of 150 items and went about taking strong, corrective measures. Among the loopholes were issues ranging “from impersonation while voting, collusion of polling staff with contestants, the use of muscle power, to illegal use of government machinery…”
Seshan lifted the ECI from its controversial, lackey-of-the-government position to make it an organisation with integrity and authority. Those days lasted only till Seshan was in the hot chair. When he demitted office on December 11, 1996, the ECI’s image started to fall apart yet again, probably because Seshan failed to consider one critical angle: however airtight a system may be, it is only as strong as the people who man it. That is the real weak link.
Such remained the controversial position of the ECI till, five months back, the Supreme Court ruled that a three-member panel, headed by the Prime Minister and comprising the Leader of the Opposition in Lok Sabha and the Chief Justice of India, will select the Chief Election Commissioner (CEC) and Election Commissioners (EC) until a law is enacted by Parliament on their appointments.
The five-judge Constitution bench of the top court, ruling on petitions seeking an independent mechanism to appoint the CEC and EC, had also said where no Leader of Opposition is available, the committee will include the leader of the largest Opposition party in Lok Sabha in terms of numerical strength.
On August 10, the NDA government initiated the making of that law by introducing a bill in the Rajya Sabha, seeking to replace the Chief Justice of India with a cabinet minister nominated by the Prime Minister in the committee for selection of the CEC and EC. That law, when passed, should finally bury all the “measures” that Seshan had taken.
Of course, the bill envisages the presence of the Leader of Opposition in the Lok Sabha as also a member of the selection committee, but considering the brute majority that the current dispensation has in the lower house, this mention seems superfluous.
Executive overreach
Should one call this a case of executive overreach, it has to be remembered that across time and space, across geographical boundaries and with every honourable dispensation in power, such cases of overreach have happened, time and again. People’s liberties have been toyed with, the judiciary has been sidelined and democratic procedures have been burnt at the stake. The fault lines of representative democracies are bold and deep enough to be easily prised open with a long chisel of deceit and a huge sledgehammer of public support.
Overreach is almost inevitable, and overreach is also a double-edged sword. Again, the fault lines that exist within a representative democracy would yield the counter-narrative of the judiciary’s overreach. After all, they argue, the party in power comprises elected representatives of the public. In a democracy it is the people that wield the most power, not paid judges in stuffy rooms, they’d say.
Aside, we remember that long ago the great playwright and thinker George Bernard Shaw had said: “Democracy is a device that ensures we shall be governed no better than we deserve…” He also said: “Democracy substitutes election by the incompetent many for appointment by the corrupt few.” It is up to the reader to decide if this applies to this case, but smart quotes do seem to be able to run marathons on empty.
Wording of the Bill
The bill intends to repeal the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. As per Article 324 of the Constitution, the ECI consists of the CEC and such number of other ECs as the President may decide. The CEC and other ECs are appointed by the President. The bill specifies the same composition of the EC. It adds that the CEC and other ECs will be appointed by the President on the recommendation of a selection committee.
That is where things get murky. The bill explains the composition of the selection committee, and says: “The Selection Committee will consist of: (i) the Prime Minister as Chairperson, (ii) the Leader of the Opposition in Lok Sabha as member, and (iii) a Union Cabinet Minister nominated by the Prime Minister as member. If the Leader of Opposition in Lok Sabha has not been recognised, the leader of the single largest opposition party in Lok Sabha will assume the role.”
This means that the selection committee is being constructed with an inbuilt bias. What purpose the Leader of the Opposition will serve, while enjoying the coffee and cupcakes at meetings and apart from issuing dissent notes, is anybody’s guess.
The bill also explains how the right candidate will be found for the posts within the EC. It says: “A Search Committee will prepare a panel of five persons for the consideration of the Selection Committee. The Search Committee will be headed by the Cabinet Secretary. It will have two other members, not below the rank of Secretary to the central government, having knowledge and experience in matters related to elections. The Selection Committee may also consider candidates who have not been included in the panel prepared by the Search Committee.”
Hence the search will remain a sterile administrative matter, under the watchful eye of the dispensation in power.
A hidden claw
While the rest of the bill looks antiseptic, one section still seems to have claws. This is the removal and resignation clause. It says: “Under Article 324 of the Constitution, the CEC can only be removed from his office in a manner similar to that of a Supreme Court judge. This is done through an order of the President, based on a motion passed by both Houses of Parliament in the same session. The motion for removal must be adopted with: (i) majority support of total membership of each House, and (ii) at least two-thirds support from members present and voting. An EC can only be removed from office on the recommendation of the CEC.”
The bill retains this removal procedure. Hence, in the unlikely instance of a CEC suddenly growing a spine, he/she still has the legal handle to transform himself/herself into a person of substance.
Right to dissent
As for dissent, Justice Deepak Gupta, former judge of the Supreme Court, had this to say at a lecture organised by the Supreme Court Bar Association on February 24, 2020. He reminded the audience that the “Preamble to the Constitution of India promises liberty of thought, expression, belief, faith and worship. Clauses (a) to (c) of Article 19(1) promise:
“Freedom of speech and expression; Freedom to assemble peaceably and without arms; and the freedom to form associations or unions.
“These three freedoms are vehicles through which dissent can be expressed. The right of freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree. The right to disagree, the right to dissent and the right to take another point of view would be inherent in each and every citizen of the country.”
The right to remain silent and inert, of course, is also a human right.