By Mohd. Naushad Khan

On November 23, a five-judge bench of the Supreme Court asked Attorney General R. Venkataramani to produce documents related to the appointment of Arun Goel as Election Commissioner on November 19. Earlier, during the hearing, the Apex Court said that Chief Election Commissioner needs to be a person like TN Seshan who cannot be bulldozed. Will these statements from the Supreme Court expedite any kind of reform process that can ensure independent identity of the Election Commission?

When I personally think of TN Seshan, his modus operandi as Election Commissioner and his persona, I usually get reminded of what he said, “Not a single square inch of land in India is free of corruption.” When he said so, he was not only speaking his mind but it was his personal experience as Election Commissioner. On the day, when he was to retire, he said, from tomorrow I am going to join millions of unemployed in the country. And this he said so because it was clear in his mind that the way he handled Election Commission no one is going to offer him anything after his retirement and also because he was neither a yes-man of the government nor was he ready to be bulldozed.

It is indeed true, TN Seshan played an instrumental role in changing the perception of the Election Commission without trespassing the rulebook of the Commission and by remaining within the spirit and the guidelines of the Constitution. Seshan proved the famous adage right which says, “Winners don’t do different things. They do things differently.” This is what he exactly did and that is why the Supreme Court has said we need CEC like that of TN Seshan.           

Earlier several petitions were filed on the process of appointment of Election Commissioners. Even though final decision has not yet been made, but during oral arguments the court has questioned whether the procedure is overly influenced by the executive and whether placing selections through an independent panel would instead add more checks and balances.

The four PILs filed since 2015 are before the Supreme Court. The PILs were filed by Anoop Baranwal, an attorney at the Allahabad High Court, Ashwini Upadhyay, a Bharatiya Janata Party leader well-known for filing numerous cases of public interest, and the Association for Democratic Reforms, a non-governmental organisation that monitors the electoral process. The fundamental claim made by the petitioners is that the current selection procedure for election commissioners is opaque.

The petitioners argued that because the President is constrained by the counsel of the Prime Minister and his council of ministers, the choice of election commissioners is purely an executive one. According to one of the petitions, this “gives the ruling party enough freedom to select someone whose loyalty is to [be] secured and so renders the selection process open to manipulation and partisanship.”

According to Professor Ranjit Singh Ghuman, who is an economist and political commentator, “The very fact that the SC has raised the issue is an indication that all is not well with the functioning of the EC. In view of this the EC’s functioning needs a well-informed public debate. There is an impression among the people of India that over the period of time there has been an erosion of almost all the Constitutional institutions. It is thus a high time that the country needs to debate the role and functioning of all the Constitutional institutions so that they could perform their Constitutional mandate in a transparent manner and in the larger interest of the people (We the People of India) and not in the interest of any political parties.”  

Professor Ranjit Singh further said, “Since the EC has the primary and foremost responsibility to carry out and complete the entire election procedure in a transparent manner, its head and other members must be above board with an uncompromising and unimpeachable integrity and competency and capability.  And here lies the relevance and importance of the appointment procedure of the CEC and other members of EC. While making appointment, Mahatma Gandhi’s advice that ‘means justify the ends’ must be kept in mind. The incumbent CEC and EC members must not be seekers after the completion of their tenure and the government must not give any position to EC members and CEC after the completion of their tenure.”     

On the statement of SC on CEC, Dr. Narender Nagarwal, Faculty of Law, Delhi University, said, “At the onset, the Supreme Court is not only supreme in judicial matters with its status of highest appellate authority but the Hon’ble Court is also supreme to ensure all constitutional bodies function as per the Constitutional spirit, including the Election Commission of India. It may be noted that the highest court also plays the role of guide, supervision, and watchdog of all Constitutional bodies constituted under the Constitution of India. When any constitutional body doesn’t perform as per the spirit of the Constitution, the Hon’ble Court has a mandate to fix the things.”

Dr. Nagarwal added, “The Hon’ble Court has acted rightfully and raised legitimate points in the appointment of the Election Commissioner since the issue here is about the people’s trust in the institution. The procedure itself is the main problem, not the government’s appointment-related competence. Is the appointment procedure of the Election Commissioner in accordance with the law? If not, the Supreme Court must make necessary corrections. We should not forget that to maintain these bodies’ impartiality, independence, and equitable operation, the founding fathers of the Indian Constitution granted them constitutional stature.”

Professor Arun Kumar, a Retired Professor of Economics at the Jawaharlal Nehru University, and author of Demonetization and Black Economy, in his article titled, “Absence of persons with impeccable integrity at the helm is the bane of India’s democracy,” in The Leaflet on November 30, has reasonably argued, “Will the CJI’s presence in the committee to appoint the Election Commissioners make a difference? The CJI is a member of the committee to appoint the Director of the Central Bureau of Investigation (CBI). But the Supreme Court itself has called the CBI a “caged parrot”. The problem arises since the party in power would prefer a sympathetic person as an Election Commissioner, not an independent person.”

Dr. Kumar added, “The appointment of Supreme Court judges has become contentious, with the judges and the Union Law Minister currently at loggerheads. Judges themselves have talked of pressures and counter pressures from within and from the government. Appointment of some who are seen to be inconvenient have been withheld. Earlier this week, a division bench of the Supreme Court mentioned that by delaying appointments, good people are dissuaded from becoming judges. It is suspected that the appointment of certain judges is delayed so that they do not become CJI in due course of time.” 

Nasir Aziz, president of SAMLA (South Asian Minorities Lawyers Associations), while sharing his perspective on the ongoing debate, said, “The recent observations of the Supreme Court regarding the phenomenon of brief office tenure of the Election Commissioners of India have created a lot of debate across the country. There is absolutely no doubt that the tenure of the Election Commissioners has become so narrow and brief that it adversely affects the effective administration of the election process in India. If full tenure of 5 years is not granted to the Election Commissioners, one can’t expect them to bring about changes for free and fair elections in the country.”

He further said, “Unfortunately, the system was tweaked during the UPA regime yet the complete downfall occurred during the present regime. As a matter of fact, the downfall did not occur with election commission alone, the present regime helming the affairs of India has destroyed almost all the institutions including the SC which is now showing great concern about the decline in the election commission and is ruing the fact that no TN Seshan is available now. The government does not want a Seshan as all they need is an Election Commissioner who is subservient to their commands. After all, Elections are of utmost importance to the forming of a government and a tough Commissioner backed by a full tenure would prove detrimental to the interests of the ruling party.”

The SAMLA president argued, “The last appointment of election commissioner Mr Goyal is the last nail in its coffin. The way he was asked to submit resignation, the way the notification for his appointment was issued and approved within a period of 24 hours is something unheard of and is something which shows the current sorry state of democracy or democratic institutions in the country. One more thing I would like to say as a lawyer is that the same briefness of tenure has been happening in the Supreme Court itself as the last CJI enjoyed a stint of about 2 months only. It would be good if the charity begins at home and the apex court sets its house in order, this is not to say that the tenure of the Election Commission be not set right. The sooner it is done the better.”

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