In order to commemorate the adoption of the Constitution of India by the Constituent Assembly in 1949, the 26th of November each year is observed as Constitution Day. It is also known as National Law Day. This year we shall be observing its 70th anniversary in a couple of months. Amongst other things, anniversaries are usually meant to pause and reflect, as also take a stock of the situation besides renewing our commitment to the future. As such on this occasion it would be perhaps befitting to draw attention to a relevant constitutional issue. Our Constitution is not only the longest in the world it is also a dynamic and a living document which has been already amended more than a hundred times, 103 to be precise.
Former CJI Sikri, while elaborating on the basic structure and doctrine in the Kesavnanda Bharti case,, had brought out the Republican and Democratic forms to be the core values of our Constitution, and placed them beyond the pale of any amendment. Democracy being at the heart of our Constitution, an electoral process which is integral to and operationalises democracy, naturally tends to occupy centrestage, in turn highlighting the importance of the Election Commission. The need for free and fair elections was realised even by the Constituent Assembly, where it was mentioned in one of the debates ~ “The independence of the elections and the avoidance of any interference by the executive in the elections to the Legislatures, should be regarded as a fundamental right provided for in the chapter dealing with Fundamental Rights”.
Though it was not incorporated into the Fundamental Rights, yet there was without dissent, mutual agreement in the House regarding the creation of an independent institution called the Election Commission. A democracy means a government by the people, but the one that we usually elect is not always a representative government, the problem being the first past the post system. On an average in any election, between 65- 75 per cent of the people exercise their franchise. Out of these, due to the splitting of votes amongst several candidates, the one who has secured even 35 per cent of the total ballots cast is almost sure to win. In real terms it means that the winner represents only a minority of people, while ‘We the people’ remain a silent majority but end up as losers.
The organisation of the first three general elections was almost a nightmare in logistics but otherwise there were no major issues. The situation, however, changed from 1967 onwards as by that time the unscrupulous elements had seen through and learnt the tactics of manipulating the polling process with the help of muscle and money power. Accordingly, after the 1971 elections, a 21-member committee, headed by Jaganath Rao, was constituted. This was the first step towards electoral reforms, but sadly the bill drafted on the basis of its recommendations could not be taken up. Later, Jayaprakash Narayan during the Total Revolution Movement, on behalf of Citizens for Democracy, constituted a committee on electoral reforms chaired by Justice Tarkunde. Two of its recommendations viz., minimum age of voting to be 18 years and the Election Commission to be a three- member body were accepted and also implemented later. It was also suggested by Justice Tarkunde that TV and radio for the purposes of elections should be placed under the control of a statutory autonomous corporation.
As throughout the decade of the Eighties, malpractices during the elections continued to vitiate the atmosphere, another committee under the chairmanship of Dinesh Goswami was appointed. It submitted its recommendations in 1990. Some of its important recommendations including the framing of a model code of conduct , monitoring of election- related expenses by the Election Commission, and use of electronic voting machines were later implemented. The Election Commission was sought to be strengthened by empowering it to order a re-poll or countermanding not only on the basis of a report from the returning officer but also otherwise.
Further, work on electoral reforms was undertaken by the Indrajit Gupta committee on state funding of elections (1998), which recommended “The Committee see full justification constitutional, legal as well as on ground of public interest, for grant of State subvention to political parties, so as to establish such conditions where even the parties with modest financial resources may be able to compete with those who have superior financial resources.” Apart from these recommendations, the Vohra Committee report (1993) on the criminalpolitician nexus and related issues recommended adoption of a code of conduct by the political parties to ensure a cleaner public life and not to give party tickets to persons with a criminal history.
Law Commission on Reform of Electoral Laws (1999) and National Commission to Review the Working of the Constitution (2002) also made certain very meaningful recommendations. The Election Commission itself in 2004 had made some very useful recommendations, only some of which have been implemented. For instance Rules 22 and 49B for the conduct of election rules, 1961 have been suitably amended to provide for NOTA (none of the above) to enable a voter to reject all the candidates if he chooses so. The regulation on publication of opinion and exit polls has also been undertaken in pursuance of one of its recommendations. An amendment of Form 26, for filing of an affidavit by a candidate on the annual declared income and assets, besides involvement if any in cases has since been undertaken.
Compulsory maintenance of accounts by political parties and their publication after auditing along with simplification of procedure for disqualification of a person found guilty of a corrupt practice and making a false declaration were also suggested. The Law Commission, chaired by Justice AP Shah, in its 255th report, submitted to the government in 2015, made a very comprehensive study of the subject and emphasised the strengthening of the office of the Election Commission of India. As of now Article 324 (5) of the Constitution differentiates between the Chief Election Commissioner and Election Commissioners on the procedure for their removal. While the CEC has been equated with the judges of the Supreme Court, in respect of other Election Commissioners a recommendation has to be made by the Chief Election Commissioner.
It was felt that equal constitutional protection needed to be given to all the Election Commissioners. Justice Shah also recommended regulation of paid news and political advertisements under the Representation of People Act. Recognising the importance of the Election Commission in a democratic set-up, the Constituent Assembly had extensively debated the procedure for the appointment of the Chief Election Commissioner. In order to ensure an absolutely impartial Election Commission, the members had suggested the appointment to be ratified by two-third majority of the legislatures, which of course was not included in the final draft. On the other hand in the contemporary scenario under the provisions of the Right to Information Act, 2005, appointments of the information commissioners are made by a collegium where the leader of the Opposition is also included.
Similarly, for the appointment of Director of CBI, a collegium comprising the leader of the Opposition party in Parliament as well as the Chief Justice of India or his nominee judge of the Supreme Court besides the Prime Minister, select the incumbent . For appointments under the Lokpal and Lokayukt Act, 2013, the procedure also prescribes a collegium system. The Election Commission has played a stellar role in strengthening the democratic system in the country. Holding peaceful elections on a gigantic scale for an electorate which is much bigger than that of the USA, Indonesia, Europe, Brazil and Australia, all taken together is a significant achievement. In doing so it has set an example for other countries on conducting peaceful elections.
The entire electoral process in the current scenario has assumed a more vibrant and demanding role. Keeping in view the core values of our Constitution and democratic norms, it would be very befitting to further strengthen the Election Commission and ensure that it inspires greater confidence. Accordingly a collegium system for appointment of the CEC and the Election Commissioners needs to be considered. This collegium could be chaired by the Prime Minister with the Chief Justice of India and leader of the Opposition party in the Lok Sabha as members. The elevation of an Election Commissioner to the post of Chief Election Commissioner should be only on the basis of seniority. Such a collegium system would also be in line with some other sensitive appointments.
(The writer is a former Governor and a Senior Advisor at the Pranab Mukherjee Foundation)