Former CEC Nasim Zaidi: EC must not just be neutral, it must also be ‘seen’ as neutral

The acceptability of electoral outcome is totally dependent upon the institutional integrity, neutrality and credibility of the Election Commission of India (ECI) as an institution. Therefore, the necessary condition for acceptability of electoral outcome is the trust and confidence reposed by people of the country in the ECI which fortunately the Commission has enjoyed in past several decades.

In fact, the ECI, in several opinion polls of institutional trust and confidence enjoyed amongst people, has been ranked second to the Supreme Court and number one in many other respects.

Several issues pertaining to functioning of the ECI have emerged in public domain during conduct of Lok Sabha elections 2019, ranging from the manner of enforcement of Model Code of Conduct (MCC) and timely actions under it, internal differences in the ECI, curtailment of campaign period, demand of political parties regarding VVPAT slips counting, etc, to name a few.

These issues, without getting into the merit of individual cases, are matters of concern and reflect on the functioning of an independent and neutral ECI.

The credibility of the ECI as a neutral custodian of electoral democracy can be impacted by the manner in which these issues have been addressed by it. The most important question staring at us is how to further strengthen the trust and confidence of people in the poll panel.

The only way for the ECI to restore the diminished trust and confidence of people is to demonstrate its independence of action free from external influence of any political party, and much less the ruling party in the states and at the Centre.

How can the ECI demonstrate its independence? In my view, it can only be done by the ECI by its fearless and transparent actions taken against violators, irrespective of the status of the persons involved and by strict timely and speedy enforcement of laws and the regulatory framework.

This brings us to another aspect of the functioning of the ECI that it must ensure level playing field amongst all candidates and political parties during conduct of elections. The ECI should be equidistant from all political parties and should be seen to be so by the people and political parties by virtue of its transparent actions. At the same time, all political parties should also be circumspect in targeting the ECI as an institution.

Certain institutional reforms in my view are urgently needed now than ever before to rebuild and restore the credibility of the ECI as an institution.

First, all Election Commissioners should enjoy equal protection under the Constitution. The Chief Election Commissioner can be removed by the process of impeachment in similar manner as provided for a judge of the Supreme Court. An Election Commissioner on the other hand can be removed on the recommendation of the Chief Election Commissioner. This unequal protection makes Election Commissioners vulnerable, thereby weakening the functioning of the Commission as a collective body, and on the other hand to the executive which can be unfavorably disposed towards a particular Election Commissioner for his fearless functioning and also for his appointment as the CEC in future.

In order to ensure that Election Commissioners and the CEC enjoy the trust of the stakeholders, a consultative collegium system comprising the Prime Minister, Leader of Opposition and the Chief Justice of India for appointment needs to be introduced to avoid future political finger pointing.

To be fair, the present system of appointment has also produced outstanding, independent-minded and right kind of election commissioners and CECs. The collegium system of appointment can be an improvement in terms of political acceptability.

Presently, many democracies follow a system of legislative approval of appointment in Election Commissions. However, I may add that irrespective of the system of appointment, what matters is the individuals’ character who occupy the offices in the Commission. I am of the view that the proposed collegium system may not necessarily throw up the best officials because there could be complexity of consensus building in the collegium system.

Lastly, the ECI should have a control over its secretariat in terms of service conditions of its employees and the budget of the ECI should not be a voted expenditure but a charge on the Consolidated Fund of India as is the case with the judiciary and the CAG.

I am of the view that with the above institutional reforms and independent, neutral, fearless and transparent time-bound actions taken by the ECI under the constitutional mandate and powers available with the Commission, the credibility of the ECI can be further strengthened and the ECI can remain a fearless custodian of electoral democracy in the country. The above institutional reforms can be brought in with the active support of media, civil society, lawmakers and the government.

(As told to Asim Khan) (Nasim Zaidi is former Chief Election Commissioner)