In September 2018, then-BJP president Amit Shah declared at the national executive meeting that the party would win the 2019 Lok Sabha election and then rule India for the next 50 years—that is, till 2069.
Nobody took it too seriously then. Five years on, the BJP is increasingly looking convinced that it will be in power for the 46 more years, at least. The latest evidence of that is the Chief Election Commissioner and Other Election Commissioners (Appointment, Condition of Service and Term of Office) Bill, 2023. The Rajya Sabha passed it on 12 December, and the Lok Sabha is set to give its nod this week.
Only a political party that is super confident of never losing power can propose such a law because it will give the ruling party immense control over the poll watchdog, thereby hugely undermining democracy. It’s the BJP’s way of cocking a snook at the five-judge Constitution Bench of the Supreme Court, which, in March 2023, ordered that the CEC and the ECs shall be appointed by a committee comprising the Prime Minister, the Leader of Opposition and the Chief Justice of India. The judges made it clear that it was subject to any law to be made by Parliament.
Article 324(2) of the Constitution provides for the appointment of the CEC and ECs by the President of India (essentially, the Prime Minister), subject to any law made by Parliament. Like the BJP today, the Congress in those dayssaw no need to make any law. Which ruling party wouldn’t want the authority to appoint pliable persons as CECs and ECs? Those were the days when the Congress, too, never saw itself sitting on opposition benches. After the Modi wave catapulted the BJP into a zone of perceived invincibility, there was no reason for the government to change the Congress’ practice.
In its order, the Supreme Court weighed in on political parties’ special interest in not being forthcoming with the law. “The reasons are not far to seek. There is a crucially vital link between the independence of the Election Commission and the pursuit of power, its consolidation and perpetuation…. As long as the party that is voted into power is concerned, there is, not unnaturally, a near insatiable quest to continue in the saddle. A pliable Election Commission…perhaps offers the surest gateway to acquisition and retention of power”.
The Supreme Court’s March ruling threatened to make the Election Commission of India (ECI) truly independent and autonomous. That explains the Modi government’s rush to make a law on the appointment of the CEC and ECs. The proposed law would make the Supreme Court ruling about the three-member selection panel, which would include the CJI, infructuous.
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An interesting new addition
In fact, the legislation that is likely to sail through the Lok Sabha this week seeks to further empower the executive to undermine the EC, more than what was happening during the Congress era. As per the proposed law, the old system has been continued. Where the SC had suggested a panel of the PM, the LoP, and the CJI. The proposed law seeks to replace the CJI with a Cabinet minister to be nominated by the PM. So, in case of differences over appointments, the PM and his nominee may be on one side and the LoP on the other. The majority will have the way. Essentially, it’s the PM who will decide the CEC and the ECs under the proposed law—a practice that has been continuing for seven decades.
There is, however, an interesting addition in the proposed law—providing immunity to serving and former ECs and CECs from any civil or criminal proceedings. The Bill says: “Notwithstanding anything contained in any other law for the time being in force, no Court shall entertain or continue any civil or criminal proceedings against any person who is or was a Chief Election Commissioner or an Election Commissioner for any act, thing or word, committed, done or spoken by him when, or in the course of acting or purporting to act in the discharge of his official duty or function.”
On the face of it, it may look like a move to ‘strengthen’ the ECI. But in reality, it’s just the opposite. It seeks to give PM-appointed CECs and ECs a shield against any civil or criminal proceedings for their acts of omission or commission in office. Think of a scenario where the PM appoints ECs and the CEC—presumably with a proven record of loyalty and obedience. They would be expected to repay their debts of gratitude in every way possible. They don’t have to fear any consequences in future once the law is in place.
One may argue that there can always be another TN Seshan. But those were the times when many bureaucrats had a spine. They could spring a surprise on their political masters because there was no 360-degree evaluation system to ascertain their ideological and political commitments and loyalty.
Talking about spine, former finance secretary Ashok Lavasa seemed to preserve his when he became an election commissioner in 2018. He gave a dissenting opinion when then-CEC and another EC gave a clean chit to PM Modi and Amit Shah in about half a dozen cases of alleged violation of the model code of conduct during the 2019 Lok Sabha election. His dissent note was never made part of the EC order, but the income tax department swung into action soon enough, issuing notices to his wife on various counts.
By August 2020, Lavasa chose to move to the Asian Development Bank, even though he was in line to succeed Sunil Arora as the CEC the following year. Nothing was heard from the income tax department subsequently.
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What happens when the tables turn?
Any opposition party would dread a scenario where a government-appointed CEC and ECs have a licence to execute whatever their political masters may wish—with impunity as the Bill proposes. This is not to suggest that PM Modi would want them to sell their soul. No, not at all. A popular PM like him doesn’t need to weaken the ECI and undermine democracy. We are talking about a hypothetical scenario when there is a PM who can do just about anything to retain power.
One might, therefore, think that not just the opposition, but even a section of the ruling party would be a bit nervous about the Bill. What will happen when the government changes and ruling party leaders have to sit in the opposition? A weak ECI would then be at the disposal of the Congress or whichever other party comes to power. Pliable officers are known to be loyal to power, not to any leader or party.
Therefore, if the Modi government is pushing such legislation, the reason has to be what Amit Shah said in 2018: The BJP will be in power for 50 years. The ruling party leadership must be convinced of it. They wouldn’t otherwise attempt to undermine the independence of the ECI through the above-said legislation.
DK Singh is Political Editor at ThePrint. Views are personal.
(Edited by Humra Laeeq)