How to game the elections

The just-concluded special session of Parliament, when first announced, was shrouded in mystery. Not even a trailer shed light on its business until less than a week before its commencement.

Yet one thing everyone surely expected to see on the agenda was the bill on the selection and terms of service of the members of the Election Commission, which was first mooted over a month ago, on 10 August.

This treacherous piece of legislation was finally listed for the House just five days before the session was to begin. The bill, a former chief election commissioner told the Wire at the time, was tantamount to making the umpire in a cricket match ‘subordinate to a team captain’.

On the face of it, the bill retains the three-member selection collegium suggested by a Constitution bench of the Supreme Court in Anoop Baranwal vs the Union of India, a unanimous judgement delivered this March—with a key alteration.

The Supreme Court’s interim order stipulated a selection committee consisting of the prime minister of India, the leader of the Opposition in the Lok Sabha and the chief justice of India. The new bill replaced the chief justice with a union minister of the prime minister’s choice—meaning the leader of the Opposition could be overruled by simple majority.

Loud protests from Opposition parties and legal experts followed. The flaw in the proposed arrangement was evident even to the most cursory reviewer. Was it this that forced the government to drop the bill and shift focus to the political gambit of women’s reservation? Plausible, if not certain.

What matters more than when it will turn up again, and in what form, is the barely disguised intention of the proposed amendment—the desire and determination of the Modi government to control the Election Commission—with all its deleterious consequences for an elected democracy.

Also worthy of note is the timing—it was to come up, in an arbitrarily convened special session, a few months from the next Lok Sabha election and, on the other side, less than six months from the interim arrangement proposed by the Constitution bench.

The Anoop Baranwal judgement came this year, but the public interest litigation (PIL) dates back to 2015. The PIL raised two pertinent questions: (1) Must the political executive appoint election commissioners? (2) Must bureaucrats alone be appointed as election commissioners?

In apparent response to the second question, the bill lays out for the first time the ‘qualifications’ necessary to become an election commissioner. Any officer equivalent to a secretary to the government of India with sufficient ‘election experience’ might be selected.

The bill even offers a small fig leaf, laying down a new institution—a ‘search committee’ of secretaries to be headed by the cabinet secretary. The search committee is to shortlist five names for the selection committee.

At the same time, the bill downgrades the election commissioners—who currently enjoy the same status as Supreme Court judges—to the equivalent of a cabinet secretary. Which leads us back to the first question.

The Union government maintains that the appointment of election commissioners is indeed an executive function. It also argues that there is no evidence of the Election Commission having bowed to political influence.

On the face of it, the Supreme Court observation that it was for Parliament to legislate and decide how to run or regulate the Election Commission is in concurrence with the government position. However, the court’s judgement and interim solution did take cognisance of the hasty appointment of Arun Goel as an election commissioner.

One post of election commissioner had fallen vacant even as the Baranwal PIL hearing was on. ‘Since the Constitution bench has been constituted to consider the need for a different method of appointment of the chief election commissioner and the election commissioners, the procedure involved in the appointment as has been followed throws up certain pertinent questions,’ the judgment authored by Justice K.M. Joseph stated.

Arguing for the petitioners, Prashant Bhushan had sought a direction to the government to wait on the court’s judgement before filling it. Not only did the government not wait, Arun Kumar Goel was shortlisted, approved and allowed to retire prematurely to take up his new post—all in the space of a single day. The prime minister of India himself cleared the appointment.

The apex court did not doubt that election commissioners could be honest, efficient and experienced, but it did point out that the constitutional design for the Election Commission was to keep it free of government interference and influence.

Yet, successive governments had failed to insulate the Commission from the executive—and hence the proposed interim arrangement, the court had observed. The country, it said, needed election commissioners who would not shirk from taking on even the prime minister if required, not weak-kneed yes-men.

Ashok Lavasa, an election commissioner who had been in line to become the chief election commissioner, had held Prime Minister Modi guilty of violating the model code of conduct. The other two election commissioners, including the chief election commissioner at the time, did not concur. Lavasa’s plea that his opinion and dissent should at least be recorded was turned down.

Once the election was over, Lavasa, his wife and family members found themselves at the receiving end of income tax and Enforcement Directorate inquiries. He resigned and moved to the Asian Development Bank.

During the Baranwal hearing, Justice KM Joseph had noted that “a CEC is a person to be appointed in his own right… you have made it into a promotion source… you have made (election commissioners) a feeder category”. Some former election commissioners believe that laying down eligibility criteria is a positive feature, even though there are clear indications that the Election Commission is deferring to the government even if technically not acting on orders.

Former election commissioners communicated only with the President of India, the prime minister and the law secretary. In 2021, however, principal secretary to the prime minister, P.K. Mishra, summoned the election commissioners for an ‘informal’ meeting. Prior to this, the Prime Minister’s Office had called up an election commissioner to stress the urgency of holding ‘one election’ for the entire country.

Another chief election commissioner has said on record that the commission was ready to hold ‘one election’, if directed. The same commission that objected to electoral bonds for three years has now informed the Supreme Court that it no longer has any objection to the scheme.

The prescient words of B.R. Ambedkar ring out: “There is no provision in the Constitution to prevent the appointing of either a fool or a knave or a person who is likely to be under the thumb of the executive.” A hair’s breadth separates our democracy from that fate.