Save the Election Commission: Common electoral roll can wait

No political party has done anything about institutionalising the selection process of ECs, perhaps because each of them is seduced by the prospect of capturing the ECI when they come to power

The manner in which a law ministry official ‘summoned’ the entire bench of the Election Commission of India (ECI) for a meeting with an official of the Prime Minister’s Office on November 16 has led to angry reactions from the Opposition parties. They claim that the government has compromised the ECI’s autonomy and eroded its impartiality.

Many would, however, argue that India’s democratic institutions only skeletally resemble what they are meant to be, and the ECI is no exception. The ‘upset’ election commissioners, including the Chief Election Commissioner (CEC), may have saved face by absenting themselves from the formal meeting. However, they eagerly attended the ‘informal’ meeting that immediately followed it. Commenting on this manouvre, a former CEC, O P Rawat remarked, “It seems they wanted to avoid any displeasure.”

While the law ministry went into overdrive with a flurry of clarifications following public uproar, it has not denied that the letter said that the Principal Secretary to the prime minister, P K Mishra, would “chair a meeting” on a common electoral roll and “expects CEC (Chief Election Commissioner)” to be present.

A common voter list is an election promise of the Bharatiya Janata Party (BJP). The Law Commission in its report in 2015 and even the Election Commission of India in 1999 and 2004 have also argued for a common electoral roll. However, the implication of drawing up a common voter list is that simultaneous elections will be held for local bodies, state assemblies and Parliament. For the BJP, this paves the way for its “one nation, one poll” strategy.

“One nation, one poll” may be a political requirement of the BJP – it believes that it can win from local body to state and Parliament elections on the charisma of one single individual. For the rest of the nation, the events raise the fear of partisan functioning by the ECI. They arise from the ECI’s decisions on violation of the model code of conduct during the campaign for the 2019 elections by the leaders of the incumbent government. Prime Minister Modi’s repeated citing of the Indian Air Force’s strike on Balakot Pakistan and asking for votes in the name of the Indian soldier did not invite any rebuke from the ECI. Nor did it reprimand him for announcing India’s first anti-Satellite weapon test during the campaign period. It also permitted NAMO TV to launch without a licence and to telecast during the 48-hour “warm period” before the polling, which is expressly forbidden under Section 126 of the Representation of Peoples’ Act. The ECI failed to act on these issues despite appeals from the Opposition.

Perhaps the malaise arises from the Constitution’s silence on the qualifications required for members of the ECI. They are also not debarred from future appointments after resignation or retirement from the post. As a consequence, pliable civil servants on the verge of retirement are rewarded with the post in the expectation that they would be grateful. It is therefore the ECI which is in grave need of reform -- a common electoral roll can wait.

Even the legendary Chief Election Commissioner of India TN Seshan was chosen by Prime Minister Chandrasekhar in the hope that he would be useful and grateful. ‘Al-Seshan’ as his detractors called him, however, cleaned up the electoral process, controlled election expenses, tightened the screws on sources of campaign funds, and introduced a Model Code of Conduct and Electronic Voting Machines. He asserted the Constitutional autonomy of the ECI and used his powers to reprimand, isolate and prosecute those flouting electoral laws.

Seshan was sought to be tamed by Prime Minister P V Narasimha Rao after he countermanded the election in a Tamil Nadu assembly constituency on the grounds that he had not been given sufficient Central security forces to conduct a free and fair poll. Rao used the opportunity to cut down the authority of the CEC and by an ordinance made the ECI into a three-member body that would take decisions by majority. Subsequent regimes have benefitted from this parcellisation of authority within the Commission. If no political party has done anything about institutionalising the selection process, perhaps it is because each of them is seduced by the prospect of capturing the ECI when they come to power.

Current and future election commissioners are also well warned by the example of former Election Commissioner Ashok Lavasa and his family after he disagreed with his colleagues on six complaints against Prime Minister Narendra Modi for violation of the Model code of Conduct  during the 2019 general election campaign. Lavasa complained that “minority decisions” were being “suppressed in a manner contrary to well-established conventions observed by multi-member statutory bodies.”

The Dinesh Goswami Committee (1990) on electoral reforms had recommended that the appointment of the Chief Election Commissioner should be made by the President in consultation with the Chief Justice of India and the Leader of the Opposition – and in case no Leader of the Opposition was available then the leader of the largest Opposition group in Parliament. This process the committee recommended, should be made statutory. The other two Election Commissioners, would be selected by the same process except the Chief Election Commissioner (CEC) would also be part of the consultations.

The Law Commission’s report in 2015, proposed that the appointment of all elections commissioners should be made by the President in consultation with a three-member collegium of the Prime Minister, the Leader of the Opposition in Lok Sabha (or leader of the largest opposition party)  and the Chief Justice of India. In 2018, Baijyant Panda, then a Biju Janata Dal MP, moved a private members Bill to this effect by seeking to amend the Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Amendment Act, 1993.

The current BJP government has been in power for over six and half years with a massive majority. While it wants to use this for electoral reforms of all kinds, it has kept the process of selection of election commissioners out of its reform agenda.