Written by S.Y. Quraishi.

Indian elections continue to set new benchmarks. The schedule for the 2019 General Elections has been announced. These will be held in seven phases, with 900 million registered voters and over a million polling stations involved. Around 12 million polling staff, ferried by 700 trains crisscrossing the country, will be deployed for its conduct. The Election Commission of India (ECI) is yet again set to prove its mettle by delivering a free and fair election, with clockwork precision.

The constitution-makers and the judiciary have paved the way, empowering the ECI to fulfil its massive constitutional mandate, but much remains to be done by way of electoral reforms in order to make the world’s largest democracy also the world’s greatest.

What makes the ECI the most powerful electoral body in the world?

Article 324(1) of the Indian Constitution vests in the ECI ‘The superintendence, direction and control of … all elections to Parliament and to the Legislature of every State  and of elections to the offices of President and Vice President’. The Constituent Assembly, which was responsible for writing the Constitution, therefore created a constitutional body which was totally free from executive control and fiercely independent. Free and fair elections were considered so important that the Assembly even considered making the independence of elections a Fundamental Right.

Once appointed by the President, the Chief Election Commissioner enjoys the security of tenure, is in no way accountable to the government which appoints them, and cannot be removed by the government except through impeachment in the same way as a judge of the Supreme Court.

The Election Commission is assertive about building a consensus with all stakeholders. No wonder then that it enjoys the full confidence of all political parties, whether in government or in opposition. In this context, the Model Code of Conduct is a truly unique document which emerged out of consultations between political parties and the ECI and which ensures peaceful, transparent and free and fair elections.

As for interactions with the political executive, these are ceremonial. The Ministry of Law and Justice is the nodal ministry for the ECI, which interacts with it on budgetary matters, legislative amendments concerning elections, and the framing of rules. Sometimes EC officials also attend parliamentary committee meetings.

The Election Commission never fails to listen to all stakeholders. The Chief Electoral Officers and the District Electoral Officers call meetings of political parties for discussions regarding the preparation of electoral rolls and decisions about polling stations and counting stations. The staff are under strict disciplinary control of the Commission during their deputation. The neutrality of the officers is non-negotiable, and the Commission ensures they conduct themselves with credibility.

Just because the Commission is not accountable to political power doesn’t mean it lacks external accountability. All non-confidential documents and data remain in the public domain. After the passage of the Right to Information Act, all ‘public authorities’ are obliged to provide information sought by citizens. The ECI is also subject to periodic audit by the Comptroller and Auditor General of India. All its decisions can be subjected to judicial scrutiny, except when the election process has been set in motion.

The Commission would not have been able to discharge its constitutional obligations had it not been for the continuous backing of the Indian judiciary. This is because of the Indian judiciary’s historically liberal interpretation of the EC’s powers with respect to the conduct of free, fair and transparent elections.

In Mohinder Singh Gill vs. Chief Election Commissioner & Ors, the Hon’ble Supreme Court of India held that the EC has plenary powers to fill in vacuous areas in the law by issuing executive instructions. This effectively gave the EC powers of subordinate legislation. Further, citing S.R. Bommai vs. Union of India, 1994, the EC clarified that after the premature dissolution of the assembly in any state, the Commission has the sole prerogative to schedule elections but this must be within six months.

In another landmark case, of the People’s Union for Civil Liberties vs. Union of India and Ors, 2003 the Supreme Court (SC) empowered the EC to direct candidates to disclose their criminal antecedents, assets, liabilities and educational credentials in the form of an affidavit . In 2008, the Supreme Court held that columns left blank in affidavits were in clear violation of citizens’ rights under Article 19(1) of the constitution.

The SC gave its seal of approval to the 1988 addition of Section 13CC of the Representation of the People Act (RPA), 1950 and Section 28A of the RPA, 1951 by Parliament, mandating that polling staff on election duty would be deemed to be on deputation and fully under the control of the EC. It also directed that the Model Code of Conduct would come into operation the moment an election schedule is announced. I have always described the judiciary as the guardian angel of the ECI and democracy.

Having highlighted the special position of the Election Commission in the constitutional scheme of things it is necessary to point out some shortcomings as well. Despite the untiring efforts of the Commission to ensure free, fair and transparent elections, there are some serious concerns.

Firstly, the appointment system is highly flawed, as India is the only country in the world where the government of the day appoints the three Commissioners and the elevation of the Chief Commissioner. No consultation with the opposition is held. Secondly, as already discussed, the Chief Election Commissioner enjoys security of tenure, but the same protection has not been accorded to the other two Commissioners who therefore tend to feel they are on probation. All three together constitute the Commission and protection from removal is meant to protect the institution, not just an individual.

A broad-based Collegium is the only practical way forward, as is already in vogue for the appointment of judges to the High Courts and the Supreme Court. Depoliticisation of constitutional appointments in this manner is crucial so that officials fulfilling their constitutional duty are not unfairly accused of being stooges of the government.

The increasing criminalisation of politics, paid news, fake news and the growing influence of money in politics represent other grave threats to democracy. In this context, the introduction of electoral bonds has served to make political financing totally opaque and hence has made a flawed system worse. It is evident from the May 2017 letter written by the EC to the Ministry of Law and Justice that bonds ‘have a serious impact on the transparency aspect of political finance and the funding of political parties’.

Despite the many achievements which have led to India’s elections being described as an international ‘gold standard’, we still have a long way to go. The constitution-makers and the judiciary have paved the way, empowering the ECI to fulfil its massive constitutional mandate, but much remains to be done by way of electoral reforms in order to make the world’s largest democracy also the world’s greatest.

Dr S.Y. Quraishi is the former Chief Election Commissioner of India and the author of An Undocumented Wonder: The Making of the Great Indian Election (2014). He is also the editor of The Great March of Democracy: Seven Decades of India’s Elections (2019). He Tweets @DrSYQuraishi.

*The author bears full responsibility for the facts cited and opinions expressed in this article.

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