Interestingly, the appointment of the CEC and other ECs are exclusively dependent on the will of the Executive.
The Election Commission of India (ECI) has been criticised for its “democratic deficit” since the past few elections. To be a healthy institution, the ECI has to engage with its critics before the sceptics take over. The 2019 elections witnessed the ECI doing just the opposite. It has been conspicuously absent from the public discourses to answer many questions. The ECI’s denial or delay in engaging with critics eventually allowed the sceptic to turn cynic. It will ultimately end in the eroding of its institutional credibility in the eyes of the public.
Constitutionally, the ECI enjoys enormous powers. Article 324 has given it the responsibilities of ‘superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President.’ This responsibility covers powers, duties and functions of many sorts depending on the circumstances, guaranteeing the wholesomeness of the electoral process.
Article 324 (2) provides that the ECI shall consist of CEC and such number of other election commissioners (ECs), if any, as the President may, from time to time, fix. It means the numeric composition of ECI can be changed at the will of the President. In the past, the composition of the poll panel was changed in 1989, 1990, and 1991 by the President.
Interestingly, the appointment of the CEC and other ECs are exclusively dependent on the will of the Executive. The Article 324 (2) mandated that subject to the provisions of the law made by the Parliament, the appointment of the Chief Election Commissioner and other Election Commissioners shall be made by the President of India (effectually by the Union government). In spite of this expressed mandate, no government has made the law. As a result, governmental interference in the working of the commission has continued.
We must recognise that if people start doubting the rationale and integrity of their constitutional institutions such as the ECI, the legitimacy of these institutions erodes. It appears that, on many occasions in 2019, the ECI was guilty of having deceived itself and the citizenry, big or small, by allowing critics to erode the degree of independence it constitutionally relishes. For instance, ECI has failed to provide a timely response on the question of scheduling of 2019 election in seven long phases. Similarly, the EI was alleged to have favoured certain parties by not taking timely action against the violations of the model code of conduct (MCC). It was equally blamed for not stopping campaigns keeping in view certain parties’ campaign schedules; cancelling candidatures; transferring, posting and suspending election observers on ambiguous grounds; allowing surrogate campaigns by giving its nod to leaders to visit religious shrines when the MCC was still in force, and so on.
Despite these gloomy incidences, one cannot be unimpressed with the way ECI conducted the Herculean election of 2019. It has multiple challenges like ensuring free competition for free votes in 543 Parliamentary constituencies by managing 8,040 candidates and 2,354 political parties; and dealing with seven phases of elections spanning more than a month, lakhs of polling booths and 900 million voters; and deploying personnel, appointing observers and addressing complaints and so on.
Undoubtedly, it did meet these challenges fairly well. But failed on many others. On the matter of VVPATs, the ECI should have taken the lead rather than the Opposition. The VVPAT was introduced to enhance the credibility of the voting process. The denial of 50 per cent counting of VVPAT has created a cloud of unnecessary doubt over the ECI’s intentions. The logic of the delay in counting and declaration of the result is a regressive argument. If the election process can continue for almost 70 days in 7 phases, what electoral challenges would have arisen if it were delayed for a few more days? If ECI wishes to rebuild trust, it has to promote more transparency.
To sum up, the ECI is criticised for deliberate denial or delay in engaging critical questions. Secondly, it has failed to demonstrate its fairness and independence convincingly. To rebuild trust, legitimacy and to avoid the allegation of being reduced to an organ of the government, the idea of a ‘collegium’ for the appointment of the CEC and other election commissioners as well as their uniform procedure for removal ultimately seems plausible at the moment.