The Centre's own Election Commission
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The Election Commission is making headlines again - but not for good reasons. This past Monday, in the panel meeting to choose the Chief Election Commissioner and Election Commissioner, Gyanesh Kumar, a member of the Commission, was elevated as the new Chief Election Commissioner as the term of the former chief Rajiv Kumar has expired. Haryana Chief Secretary Vivek Joshi was nominated to be the Commissioner in the vacant position. This has sparked a new controversy. According to the provisions of the Act passed in 2023, the committee to select the members of the Commission and the Chief Commissioner will be nominated by the Prime Minister, a member of the Cabinet (now Union Home Minister Amit Shah), and the Leader of the Opposition. The appointment should be made based on the decision of these three. Rahul Gandhi, the leader of the opposition, protested that the meeting was held when the case regarding the composition of the committee, which had already been criticised, was to be considered by the Supreme Court on February 19. Rahul Gandhi's stand was that there is no hurry to decide in the pendency of the petitions questioning the constitutional validity of the very law by which the nominees are selected and the matter should be considered only after the verdict. Earlier, the opposition as well as many jurists had pointed out that there is no point in the opposition leader sitting on the committee as a helpless spectator in the committee when it is stripped of its neutrality with the replacement of the Chief Justice by a member of the cabinet thereby the government side getting an upper hand of 2-1.
The practice for long was that the President would appoint the members of the Election Commission on the recommendation of the Central Government. Article 324, which was included based on the consensus reached during the constitutional debates, envisages an independent commission to oversee elections to Parliament, state legislatures, and of the President and Vice President. Till 2015, the situation was that the government would recommend and the President would appoint. A PIL filed before the Supreme Court in 2015 claimed that this system was not in the interests of the Constitution and that it should be replaced by a collegium-like committee that appoints Supreme Court judges. In 2018, a two-judge bench considered this and referred the petition to a five-judge constitution bench.
After four days of arguments in November 2022, the five-judge bench headed by Justice M.K. Joseph ordered in March 2023 that the existing method should be changed. Accordingly, till the Parliament passes the new law, a committee comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of the Supreme Court should nominate the members of the commission. While this judgment served as law, the Modi government passed a new law in December 2023. As per that, the slot of Chief Justice was given to a member of the Cabinet. With this, two-thirds of the committee belonged to the government of the day. As a result, the Election Commission ceased to have the independent existence envisaged in the Constitution and became only an instrument of the State. This is the committee that appointed the new commissioner now.
Elections are the basic process of democracy. The Election Commission has huge tasks ranging from preparing the voting list to making preparations for polling. Its tasks also include putting inplace the code of conduct, reprimanding those who violate the codes, making polling and counting of votes transparent, and monitoring the process till the final shape of elected assemblies takes is given. Such a panel should not become a tool of the government. Once appointed, the Chief Election Commissioner can be replaced only by procedures similar to changing the Supreme Court Justice. In many recent elections - for example, in the Maharashtra assembly elections - complaints of overcrowding in the voter list and high turnout seen in the last hours of voting have raised suspicions among the public. Some of those cases are still pending in the courts.
As a matter of fact, ensuring that the Election Commission hasn't lost its credibility will strengthen the credibility of the government itself. But in this regard too, the Modi government is following the same totalitarian attitude and following its own whims. The rulers, who boast abroad that India is the world's largest democracy and promote the idea like a discovery that democracy is in India's DNA, do not remember the basic requirement of credibility for the process of respecting the people when they are in their homeland. While there may be merit to the argument that if and when the Chief Justice's will is overruled it will damage the reputation of the post, the question remains as to how a member of the Union Cabinet would be suitable for the position. The current government is not ready to allow any opportunity to ask such questions. Therefore, a decision in the case before the court should not be delayed any further.
