Often we ignore real problems and attempt to find comfortable solutions to mythical problems. There is a famous story of the lost key. One day neighbours saw Mullah Nasiruddin searching for something on the street. When they enquired, the mullah told them that he was looking for a lost key. They joined the mullah in the search for the key, but to no avail. Finally, they asked him where he lost the key. He replied, “In the meadow outside the village.” When they asked him why he was searching on the street, he said, “Because the street light is here!” The recent Supreme Court order on Election Commission (EC) appointment is a classic case of searching for the key where there is light, instead of taking the light to the spot where the key is lost!
The Supreme Court (SC) directed that the Chief Election Commissioner (CEC) and Election Commissioners (ECs) should be appointed by the President on the recommendation of a panel comprising the Prime Minister (PM), Leader of Opposition (LoP) or in his absence the leader of the largest Opposition Party, and the Chief Justice of India (CJI).
Many hailed the order, and media described it as a landmark judgment. Public memory is short. The SC has given several such ‘landmark’ judgments over the years on matters relating to the electoral process. And yet, nothing substantial has changed in the conduct of elections or the political culture. In this column on December 4, 2022, I argued that judicial overreach is not the answer to democracy’s flaws. Complex and deep political challenges cannot be addressed by judicial diktats, however well-meaning they are. In respect of our elections, conduct of elections is not where the problem exists. We have an impressive record of conduct of free and fair elections, widespread acceptance of electoral verdicts, and peaceful transfer of power.
Sukumar Sen, the first CEC, surprised the world by successfully conducting credible, peaceful, impartial elections in a vast, diverse, largely rural and illiterate country. Systems and processes were built and strengthened; over time a credible culture of impartial elections has evolved. T N Swaminathan, as CEC, presided over an extraordinary election in 1977; a mighty prime minister and her colleagues were defeated at the hustings in large parts of the country, and people voted fearlessly despite the draconian ‘emergency’ powers the executive had at that time. As a result, many leaders who were jailed earlier were elected to office with large margins, ‘emergency’ was repealed, and liberties were restored to our people. Similarly, SL Shakdhar and Peri Sastri exhibited fierce independence and impartiality in conduct of elections.
T N Seshan, as CEC, invoked special powers of EC under Article 324 in the absence of a law of Parliament, and enhanced the image of the EC as a constitutional authority. During Seshan’s tenure, the three-member EC was created, and despite initial apprehensions, the experiment succeeded. Successive ECs have been conducting credible, free and fair elections at the Union and State levels.
There were instances when officials with questionable background were appointed as ECs. N Gopalaswamy, as CEC, recommended under Article 324 (5) the removal of Navin Chawla as Election Commissioner on grounds of partisanship in 2009. The then President, Pratibha Patil, rejected the CEC’s recommendation, and instead appointed Navin Chawla as CEC on the recommendation of the Council of Ministers.
The general election in 2009 was conducted peacefully in a free and fair manner under the new CEC, despite questions about Chawla’s impartiality.
The EC merely presides over the conduct of elections. A vast army of public servants headed by district magistrates and municipal commissioners in big cities, and the whole administrative machine under their supervision, conducts the elections. The systems procedures and protocols have been perfected over the years. Vigilant political parties and candidates, alert media and intense public scrutiny make sure that the elections are free and fair. In normal administration lethargy, incompetence, petty corruption and political partisanship in delivery of welfare schemes and services are common. But come elections time, the bureaucracy responds to a different set of incentives and transforms into an efficient, impartial machine that successfully conducts peaceful, free and fair elections. Our conduct of elections transcends the EC or individual officials, because a culture of transparency, efficiency and fairness is institutionalised during elections.
While there are serious questions about the wisdom of judicial overreach, there is nothing fundamentally wrong in appointing the CEC and ECs based on the selection by a committee of PM, LoP and CJI. In a democracy, we can never be too careful. The faith in election integrity is critical for social cohesion, political stability and survival of democracy. Even a mature and robust democracy like the US with strong institutions faced unprecedented crisis when Donald Trump made repeated false allegations that the election was stolen from him. Brazil, Nigeria, Pakistan, Bangladesh, Thailand and many other countries witnessed repeated allegations of election rigging undermining legitimacy of governments. Therefore steps like paper trail (VVPAT) along with electronic voting machines and EC being chosen by a panel help further strengthen public trust.
But the real challenge of our elections is not in the polling booths or counting rooms. It is behind the scenes in the form of massive vote buying and inducements, and reckless culture of promising individual short-term welfare measures at the cost of core functions of government, collective public good and real eradication of poverty. These practices are severely undermining our democracy, weakening our country and hurting our citizens. But they require a serious systemic response. Mere laws and rules will not stop voter inducements and fiscal profligacy. We need to look deeper to alter the incentives for parties and candidates to eliminate vote buying and tighten the fiscal rules applying the constitutional provisions effectively to restore fiscal prudence.
The author is the founder of Lok Satta movement and Foundation for Democratic Reforms. Email: drjploksatta@gmail.com / Twitter @jp_loksatta
