THE recommendation of the chief election commissioner (CEC) to the president of India seeking the removal of election commissioner, Navin Chawla, on grounds of `bias' has eroded the institutional credibility of the Election Commission by raising questions of the integrity of its members and also regarding its collective functioning. The CEC's recommendation becomes all the more suspect as it comes both on the eve of his retirement on April 20 and on the eve of the 15th general elections scheduled for April/May, 2009.
These developments, once again, underline the need for effective reform of the Election Commission, a matter raised by the CPI(M) in August, 2006 following the experiences of the conduct of elections in certain states. While we shall return to this later, first let us consider this recent development.
Soon after the appointment of Navin Chawla, the BJP first submitted a petition to the president of India questioning the appointment on the grounds of `political bias'. It later filed the same in the Supreme Court, withdrew and subsequently submitted the same to the CEC in January 2008. While the petition was with the Supreme Court, the CEC had filed an affidavit claiming the power to recommend the removal of an election commissioner, suo moto under Article 324 of the Constitution.
This is a strange interpretation of the Article. The Constitution empowers the president to appoint the CEC (of course, on the recommendation of the government), who cannot be removed except by impeachment by the parliament as is the case with Supreme Court judges. The election commissioners are also appointed by the president and cannot be removed except on the recommendation of the CEC. Conventional wisdom has so far interpreted this to mean that since the election commissioners are also appointed by the president, the CEC's recommendations come into play only when the proposal for the removal comes from the president itself. This was meant to protect the independence and integrity of the Election Commission against the whims of the political executive who may seek the removal of a particular commissioner on political grounds. In no case has the power of such a recommendation by the CEC a suo moto expression. By invoking such a claim, this check on the executive's power and maintaining the independence of the Election Commission is being violated by the CEC himself.
The apex court, on an earlier occasion, cautioned the Election Commission on this ground by stating, "If, therefore, the power were to be exercised by the CEC as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the election commissioners and the regional commissioners, if they are required to function under the threat of the CEC recommending their removal." In this particular instance, the CEC who has to function as the protector of the election commissioners against the whims of the political executive has himself turned into the persecutor.
This, however, raises a much larger issue of the functioning of the Election Commission itself. The Election Commission is a vital institution in the scheme of our parliamentary democracy. Parliamentary democracy is a basic feature of our Constitution. As we have moved towards advancing and reinforcing our parliamentary system, we have had to encounter new complexities. Parliament has had to enact a number of laws for ensuring the conduct of free and fair elections — striving to insulate our election procedure from manipulation by partisan influences.
The Constitution has assigned centrality to the Election Commission of India (EC) for conducting elections both to the parliament and the state legislatures. Key to this power is Article 324 of the Constitution which empowers the EC for superintendence, direction and control of these elections. Articles 325 to 329 elaborate these powers of the EC and set out the direction in which it will conduct elections. Subsequently, parliament enacted the Representation of the People Act (RPA).
This has been amended a number of times to address the new complexities which elections have over time come to face. While the constitutional and the statutory processes have been generally aimed at strengthening the process of parliamentary democracy and the democratic, free and fair character of elections, the emphasis has been on strengthening the independence and autonomy of the EC.
The CPI(M)'s document released for a public debate in August 2006 states: "There can be no question on this basic constitutional and statutory direction regarding the functioning and powers of the EC; but it is equally important to examine the constitutional and statutory standpoints for ensuring the accountability of the EC and the criteria by which this can be benchmarked. This is becoming increasingly important, because without properly defining this accountability, the EC as an institution can show a proneness to non-transparent, subjective and arbitrary behaviour. Such adverse tendencies can also result in a partisan approach and ultimately undermine its constitutionally assigned non-partisan and independent character."
With a view to strengthen parliamentary democracy and the holding of free and fair elections, the CPI(M) had suggested the following reforms in the composition and the functioning of the Election Commission.
i) The composition and the modality for appointment and removal of members of the EC, including the CEC: Initially, the EC was a one-member body. Subsequently, the size of the EC was expanded to a maximum of five with special provisions for the removal of the CEC. In so far as the appointment procedure is concerned, the members may be appointed by the president on the advice of a committee consisting of the prime minister, the leader of the opposition and chief justice of Supreme Court or anyone of his brother judges from the apex court. However, the ECs must be legally debarred from enjoying any office after their retirement either under the government or as a governor or as members of parliament to eliminate any possible conflict of interest. There should be a constitutional mechanism to monitor and check if Election Commission acts with political bias, usurps the powers of governments or does anything with malafide intention. Necessary amendments to the Constitution, if required, must be made. The Election Commission should be made accountable for its commissions and omissions.
ii) Jurisdiction of the EC: This question has emerged as a major issue. Certain orders of the EC during the elections on the ground that these are necessary for holding free and fair polls are being openly questioned as they implicitly encroach into constitutional powers of the executive and the legislature. The EC's decision to disenfranchise genuine voters as also its directives to discipline officials under the central and the state governments even before the actual notification of the dates for election, the wholesale exclusion of the employees of a state (as happened in West Bengal in 2006) entirely from crucial polling duties are fraught with upsetting federal sensitivities. The EC's decision to question the legislative initiative of the executive subsequent to legislative decisions taken prior to the enforcement of the code of conduct implies encroachment in legislative autonomy and is prone to subjective interpretation. The EC's method of budgeting and actually incurring expenditure stands in sharp contrast to the budgetary process otherwise followed. Therefore, it is in these areas of EC's jurisdiction that clarity and amplification is needed through legislative action.
iii) The definition and the role of election observers: In spite of a number of queries, the EC has not been able to clarify whether the observers are vested with executive powers or not. Though the EC documents suggest that observers' powers are essentially recommendatory in nature and persuasive in practice through the regular Election Commission hierarchy, the observers were actually found to be exercising executive power, mostly through oral instructions. Therefore, on this question as well, the RPA must be very specific and the EC's functioning has to be regulated by the legal provision.
iv) The law and order question and the deployment of central forces: Law and order is the exclusive prerogative of the state government as per the provision of the Constitution. The Constitution does not have any saving clause which can override this power even during the election. In the past, these issues had been amicably settled. But, subsequently, a unilateral approach was being pursued by the EC which underlines a contempt and mistrust towards elected state governments questioning their commitment in defending the Constitution. The friction between the EC and an elected state government — both constitutional bodies — is not only undesirable but in a federal situation potentially dangerous. Constitutional amendments would be required to bring about some mechanism for amicable resolution of such frictions.
In the light of the recent developments, it is of utmost necessity to seriously consider these suggestions to strengthen India's parliamentary democracy and its Republican character. The new political executive that will assume office after the 15th general elections must take up this matter in right earnest.