By Inder Jit
(Released on15 June 1982)
The selection of the new Chief Election Commissioner is regrettably not receiving the attention it deserves from the public and, what is more, the media. Interest of the two is largely focussed on the next President. The choice of the head of State is no doubt of great importance. A good President who is truly willing to put the country before self is something to hope and pray for after the unhappy experience of the past decade and more. But in sheer practical terms the job of the CEC is no less crucial to the health of our democracy. Alas, this is still not adequately appreciated even days before the CEC’s post falls vacant on Friday, June 18. As I have averred before, there would have been no general election in West Bengal or bye-election in Garhwal or, indeed, the recent mini general poll in May if we did not have in Mr S.L. Shakdher an independent and impartial CEC who refused to allow any pressure or temptation to deflect him from the path of duty on the eve of his retirement unlike many lesser men.
The Opposition leaders understand the key nature of the CEC’s job. An independent CEC alone can ensure free and fair elections which are the bedrock of any democracy. These leaders, therefore, did well on May 26 to demand that the Government should consult them in the appointment of the CEC and thereby ensure his impartiality. Significantly, they also urged that Mr Shakdher be allowed to continue as CEC pending two things. First, a full-scale discussion in Parliament of the electoral reforms proposed by the Election Commission. Scores of sound proposals continue to gather dust for the past many years — proposals which would have strengthened the system and cried a halt to many scourges, including political harlotry. Only the other day, Mr Shakader made the eminently pragmatic suggestion that defectors could be made to forfeit their seats through an amendment of the Representation of the People Act. Second, a decision on the CEC’s tenure of office and terms and conditions of his service in accordance with the Constitution of, in effect, the wishes of its Founding Fathers.
Both the Government and the media appear to have got the wrong end of the stick, as reflected in a news item put out by a leading wire agency quoting official sources — and another published by a leading Delhi daily. The news agency despatch stated that “no extension is likely to be given to Mr Shakdher, pending a parliamentary debate on poll reforms.” It added: “According to official sources, poll reforms and the tenure of the Chief Election Commissioner are not inter-linked in any way as was being made out by the Opposition parties”. The newspaper confirmed that “the Government has no intention to give an extension to the CEC, Mr Shakdher, pending a parliamentary debate…” Clearly, the Government and the media have missed the point and treated the matter as though it was merely a question of giving Mr Shakdher an extension — as in the case of some bureaucrats. The truth is that this case is altogether different and involves an issue which is basic to the independence of the CEC. It has nothing to do with the person of Mr Shakdher.
To begin from the beginning. The Constitution makers were clear that the Election Commission must be independent and went ahead to create an Election Commission which would function without fear or favour. Accordingly, Article 324(1) of the Constitution provides: “The 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 held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission.)” But all this would have been meaningless without ensuring the independence of the Chief Election Commissioner. Therefore, the Founding Fathers also provided under Section 5 of the same Article that “the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a judge of the Supreme Court”. Further, “the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment”.
That is not all. The Constitution makers wanted Parliament to further ensure the Commission’s independence by enacting a law in regard to the conditions of service and the tenure of office of the CEC. The President was, however, empowered pending such legislation to determine both by rule. Shockingly, no such law has been enacted in the 32 years that have rolled by. Instead, the tenure and conditions of service of the CEC have continued to be left to the whims and fancies of the Government of the day. Some might argue that there is little difference between executive rules framed by the Government and a law proposed by the Government. But there is a qualitative difference. Parliament has a say in the enactment of any law when it comes up for discussion. Not unoften, the Government is known to accept amendments from its own party or under pressure from the Opposition and public opinion. But Parliament has no voice in the framing of rules which, in theory, could not only be arbitrary and autocratic but also mala fide — designed to help the ruling party.
The Opposition leaders understand the key nature of the CEC’s job. An independent CEC alone can ensure free and fair elections which are the bedrock of any democracy. These leaders, therefore, did well on May 26 to demand that the Government should consult them in the appointment of the CEC and thereby ensure his impartiality.
The Constitution makers equated the CEC with a Judge of the Supreme Court. Article 324(5) provides that a CEC shall not be removed from office except in like manner and on like grounds as a Judge of the Supreme Court. But the rules do not reflect this. Today the CEC is not only appointed by the Government according to its sweet will, but the Election Commission’s secretariat has been virtually reduced to the position of a subordinate office. Indeed, everything about the CEC was ad hoc until 1972, when the rules were framed. Consequently, the first CEC, Mr Sukumar Sen, held office for seven years. He was followed by Mr K.V.K. Sundaram from 1958 to 1967 and Mr S.P. Sen-Verma from 1967 to 1972. Dr Nagendra Singh, now a world Court Judge, functioned as the CEC for a few months. He was succeeded by Mr. T. Swaminathan, who had retired as Cabinet Secretary. All five retired at 65 years or more; the rule provides for the CEC’s retirement at 65 or after five years, whichever is earlier. Mr Shakdher will be the first CEC to retire at sixty-three and a half years.
What should be done? A law must be enacted at the earliest and the Election Commission enabled to function independently without the hidden constraints. The absence of any legislation tends to compromise the independence of the Commission and the self-respect of the CEC. Incredible as it may seem, the CEC has no authority to create a responsible post in his secretariat. All the power vests with the Law Ministry. (Incidentally, Mr Shakdher has not taken any leave in five years unsure whether he can do it on his own or whether he has to write to the Law Ministry.) Often his directions have even been flouted. Not long ago, the Ministry issued instructions over the head of the Commission to all the Chief Electoral officers not to provide any funds for the Commission’s scheme to issue photograph-cum-identity cards for voters all over the country. The Ministry thus interfered with the Commission’s functioning and its efforts to ensure free and fair elections. Ultimately, the Prime Minister intervened and about Rs 16 crores has been provided in the current financial year. But that is another matter.
The Opposition has made a sensible proposal in suggesting that Mr Shakdher be allowed to continue in office until a law regarding the CEC’s tenure and conditions of service is enacted in accordance with the Constitution. In case a new CEC is appointed to succeed Mr Shakdher on June 18, the whole matter will automatically get cold-storaged for another five years even if the Government decides to bring forward the overdue legislation in Parliament’s next session and enact it before the year is out. How? The Constitution, as I have stated earlier, bars the Government from varying the terms and conditions of service of a CEC once he is appointed. Thus, if there is to be a law and if Parliament has to have a say in regard to the new CEC, the job will have to be done before the new CEC takes office. At any rate, no one can be sure about what may happen tomorrow, having regard to the experience of 32 years. Once the issue is no longer pressing, it is certain to be forgotten for another five years.
Mr Shakdher, it needs to be clarified, is not interested in an extension. Indeed, the move of the Opposition leaders came to him as a surprise. Even today it is not clear whether he would accept an extension. However, there are three good reasons in the public interest for delaying the new CEC’s appointment. First, the Presidential election is now in process. It would seem odd to have a change midstream. Second, Mr Shakdher is the first CEC to have received full-throated praise from the Opposition and the public at large for his independence of action. Time was when the CPI(M) in West Bengal denounced Mr Shakdher as a “running dog” of the Congress(I). Yet, the same party has now offered him kudos. Mrs Gandhi herself complimented the CEC in March last in Parliament for his impartiality. What is more, the Supreme Court has confirmed every single decision of Mr Shakdher during the past five years and in the process even extended the CEC’s power through new interpretation of the Constitution and the election laws. It has now advised the Courts not to interfere in the electoral process once an election is announced.
Mr Shakdher is the first CEC to have received full-throated praise from the Opposition and the public at large for his independence of action. Time was when the CPI(M) in West Bengal denounced Mr Shakdher as a “running dog” of the Congress(I). Yet, the same party has now offered him kudos. Mrs Gandhi herself complimented the CEC in March last in Parliament for his impartiality. What is more, the Supreme Court has confirmed every single decision of Mr Shakdher during the past five years and in the process even extended the CEC’s power through new interpretation of the Constitution and the election laws.
Third, a delayed appointment of the CEC would enable Parliament to decide whether India should continue with a one-man Commission or opt for a three-man Commission as strongly pressed for by JP and, significantly, favoured by the former Law Minister, Mr Shiv Shankar, in Parliament. An extension to Mr Shakdher and a delay in the appointment of the new CEC could provide an intervening period which could be utilised usefully in legislating not only for the CEC’s tenure of office and conditions of service but also for an overdue discussion on electoral reforms. The new CEC’s appointment could be made an occasion to open a new chapter in the Commission’s life. The Government would, therefore, do well to respond constructively to the plea of the Opposition and take immediate steps to make amends. The Constitution has been violated already for far too long. A positive response would also help ensure continuance of an atmosphere in which polls are not only free and fair but also without fear. The Government should not make an issue of the CEC’s extension. Its bona fides is on test. — INFA