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Change the mode of appointment to Election Commission

By: K Parthasarathi
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People would lose the faith in the fairness and even handedness of the high office of Election Commission once appointments to it are perceived to be made with partisan ends.

The BJP has petitioned CEC on the matter of Mr.Navin Chawla’s appointment as election commissioner as per directions of SC to which it took up earlier. Its earlier representation to the President was forwarded to PM who in turn referred it to AG. He defended his appointment saying that Mr. Chawla did no wrong as EC ignoring the main charge by BJP of a likely bias due to his close association in the past with people who mattered in the Congress and hence his unsuitability for a position that called for strict neutrality. The ball is now in CEC’s court. There were news reports that the government was contemplating a move to make all the election commissioners equal thus depriving the primacy of position of CEC and his power to recommend removal of EC.

The ruling establishment had always desired a pliable and weak Election Commission that would not upset its programme in ever so many matters from the choice of convenient dates for elections to turning a Nelson eye to the aberrations of the ruling party (ies). The trend to weaken the institution came from Mr.Seshans days when it was perceived that EC did not perform as per the expectations of the ruling dispensation. The frequent confrontations with the Election Commission during his tenure witnessed the expansion of the Commission to a three-member body with the majority view prevailing in case of dissent. This was done primarily to curb his vast powers. This solution of bringing two more Commissioners did not also help matters as the governments soon found the election commission even with three members inconvenient to them during tenure of the Mr.Lyngdoh.

After the highly commendable work of EC in Bihar in setting right the electoral rolls by massive deletions of about 18 lakh names and additions of about 4 lakh names and ensuring a free and fair poll, there were rumours that an expansion of the commission to a five member panel instead of three member was being pressed by the Left before Bengal poll with a view to dilute the powers of EC.Luckily this did not happen

There are any number of constitutional authorities like the Chief justice of India, Comptroller and Auditor General of India, the Chief Vigilance Commissioner the Advocate Generals, and the Solicitor General who may in the course of discharging their official duties may not be necessarily reflecting or toeing the line of the establishment. Is increasing the number of such high offices any solution? Is finding someone from outside the line a desirable method? In fact the Supreme Court had come down heavily on the appointment of additional advocate Generals in the states. It held that the states cannot appoint more than one Advocate general under article 165 of the Constitution.

The reasoning given was that if more than one person is appointed to discharge the constitutional functions as also the statutory functions, different advocate generals may act differently resulting in a chaos. It went on to say that in the appointments to the constitutional posts such as Chief Justice of India, Attorney General, the constitution did not envisage their functions to be performed by more than one person. This logic was not observed when the amendment to appoint three members to oversee the functions of the Election Commission was carried out. It is hoped there would be no attempt to alter the present strength in future.

The appointment to Election Commission is made by the President on the basis of recommendation of the Prime Minister. There is no obligation to consult other parties or independent authorities while making such recommendation. This gives ample room for the ruling party to choose someone whose loyalty to it is assured. The controversy over selection of Navin Chawla who is perceived to be close to Congress gives room to the risk of ruling party packing the EC with its nominees. It was in this context that the recommendation of former CEC Mr.B.B. Tandon should be viewed. This issue of appointment by a neutral committee has been discussed in the past several times by committees but the recommendations have not been acted upon for obvious reasons.

The Committee on Electoral Reforms under the chairmanship of the Law Minister, Mr. Dinesh Goswami in 1990 had recommended “(a) the appointment of the CEC should be made by the President in consultation with the Chief Justice of India and the Leader of the Opposition; (b) the consultation process should have a statutory backing; (c) the appointment of the other Election Commissioners should be made by the committee in consultation with the Chief Election Commissioner; (d) on expiry of the term of office, the Chief Election Commissioner and the Election Commissioners should be ineligible for any appointment under the Government, including the post of Governor.

Mr.Tandon in his personal capacity had rightly raised the old issue of achieving the neutrality of the election Commission by a review of the present mode of appointment of CEC and the two election commissioners. It is understood that he had sought the appointment of members of EC through a seven member committee headed by the Prime Minister on the lines of the NHRC chairperson and the Central Vigilance Commissioner.

Long time back Tarkkunde Committee (1975) had also recommended that the members of the Election Commission should be appointed by the President on the advice of a Committee, consisting of the Prime Minister, the Leader of the Opposition (or a Member of Parliament selected by the Opposition) in the Lok Sabha, and the Chief Justice of India. The reasoning was that the choice should command the confidence of all sections of public opinion and an impression should not be created that the Election Commission is beholden to the Executive Despite all these recommendations the governments so far including NDA when it was in power had not shown interest in addressing this important issue.

The debate assumes significance in the context of the recent controversy over the choice of an Election Commissioner alleged to have close links with Congress men. The gravamen of the charge raised by NDA was that Mr. Chawla had close links with the leading family of Congress and that he could collect with ease donations from several Congress legislators from their MPLAD accounts and could also obtain lands at concession for his families’ private trusts using this proximity.

It is likely that Mr.Chawla would be CEC when the next general elections take place..Naturally the parties in opposition to Congress shudder at such a prospect of having a CEC who is partisan in their perception It is their genuine apprehension that such a person who was obliged to the Congress leader and many members of her party could not be an impartial referee. They plead that Mr.Chawla’s removal alone would strengthen the faith of the people in the continued impartiality, neutrality and credibility of the Election Commission.

To circumvent any possible decision by CEC in this matter by devious means like making him equal to other ECs or in any other manner would only make people lose faith in EC. It is hoped that the government would desist from such rash course and instead do two things:

1) to let CEC decide based on merits on the present case and make his recommendations to the President and

2) to review in right earnest the recommendations of the earlier committees and the former CEC in consultation with all parties and arrive at a consensus on the manner of appointment of Chief Election Commissioner and other two Election Commissioners.

It may be recollected that even for a minor peccadillo of praising the CM in a social function in a state, a senior police officer was ordered by the election commission to be shifted on the ground that he cannot be impartial in his actions. This action of Election Commission was presumably intended to demonstrate to the people that the officers overseeing the electoral work are both to be completely free from any prejudice and seen so. The objective being that the whole process should not only be fair but is also seen so and the outcome reflects the true will of the people.

We must bear in mind that the whole democratic set up stands on the tripod of fairness, transparency and total impartiality of the members of the Election Commission and its officers. There should be no doubt in the minds of the people about the fairness of the electoral process and the unbiased nature of the persons conducting the elections. Any weakening of the faith in this body would do irreparable damage to the democratic fabric of the country.

K Parthasarathi

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