Chief Election Commissioner Sushil Chandra and two Election Commissioners, Rajiv Kumar and Anup Chandra Pandey, attended an online interaction with Prime Minister’s Office on November 16, 2021. This came after the EC received a letter from the Union law ministry that the Principal Secretary to Prime Minister P.K. Mishra will chair a meeting on the issue of common electoral rolls and expects the CEC to be present.

It was reported in the Indian Express that the letter from the law ministry to the EC was unusually worded and it amounted to a “summons” to the CEC.

While the CEC, according to newspaper reports, initially expressed “displeasure” and asked officials of the EC to be at the meeting, he and the other two Election Commissioners later joined the informal meeting chaired by the Principal Secretary to the PM.

The episode reminds us of Dr. B.R. Ambedkar’s words in the Constituent Assembly. On June 16, 1949, during the debates in the Constituent Assembly on the draft Article 289 (now Article 324) of the constitution dealing with the Election Commission, he presciently said:

“[T]here is no provision in the constitution to prevent the appointing of either a fool or a knave or a person who is likely to be under the thumb of the executive.”

A day earlier, on June 15, 1949, while moving the draft Article 289 in the Constituent Assembly for setting up an Election Commission, Ambedkar had observed:

“…[W]ithout any kind of dissent, that in the interest of the purity and freedom of elections to the legislative bodies, it was of utmost importance that they should be freed from any kind of interference from the executive of the day.”

Ambedkar’s apprehension

Thus while the Constituent Assembly unanimously took a decision to set up an independent Election Commission free from any interference of the executive, Ambedkar was aware that the constitution did not prevent the appointment of a person who would be under the executive’s thumb.

Slightly more than 72 years later, Ambedkar’s fears may have come true.

The CEC Sushil Chandra and two Election Commissioners Rajiv Kumar and Anup Chandra Pandey by attending the aforementioned meeting chaired by PM’s Principal Secretary on the basis of a letter from the law ministry have upheld the government intent and negated the Constituent Assembly’s legislative intent – which is one of the crucial factors taken into account by the judiciary while determining the constitutional validity of the actions, among others, of constitutional bodies.

It is worthwhile to understand the legislative intent of the Constituent Assembly vis-à-vis the independence of the Election Commission by exploring the debates of the Constituent Assembly on the poll body.

While moving the Article 289 for discussion in the Assembly on June 15, 1949, Ambedkar revealed that the Committee on Fundamental Rights of the Constituent Assembly proposed that elections should be made part of fundamental rights. Citing reasons behind that proposal, he stated:

“…[T]he 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 and provided for in the chapter dealing with Fundamental Rights”.

The ‘Fundamental Rights’ chapter provided that the state should not encroach on the rights of persons or citizens as the case may be. So initial ideas that election matters should be put in the Fundamental Rights section revealed the legislative intent to keep those free from the encroachment of the state, a key organ of which is the executive.

In other words, the Constituent Assembly right from the time it conceived and considered the idea of an Election Commission unequivocally conjured a vision to make it free from any influence whatsoever, from any authority, including the executive of the day with a view to ensuring its impartiality for the “superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections”.

Several members of the Constituent Assembly, while complimenting Ambedkar for moving the article for the establishment of an impartial poll body, were worried that future governments formed by political parties might abuse the provisions of the constitution to manipulate the Election Commission for its advantage.

‘Unsuited’

A distinguished member, Professor Shibban Lal Saksena, while participating in the discussion on June 15, 1949, said:

“It is quite possible that some party in power who wants to win next elections may appoint a staunch party man as Chief Commissioner”.

He added that in the future there would not be a Prime Minister like Jawaharlal Nehru known for independence and impartiality and someone else with weak credentials might occupy the office of Prime Minister and abuse his right by appointing an unsuited person as CEC, who in turn would wreak havoc on the electoral process.

H.V. Pataskar, who went on to become Union Information and Broadcasting Minister, in his speech in the Constituent Assembly urged Ambedkar to deal firmly with people who “trifle with democracy on linguistic, racial, or other considerations”.

Hriday Nath Kunjru stated in his speech that without common honesty of the persons occupying the highest positions there would be weakening of the foundation of responsible government, presenting gloomy outlook for the future. Therefore, he suggested that Ambedkar’s proposed Election Commission should be modified to “consist of impartial persons, so Election Commissioners may be able to discharge their duties fearlessly”.

He demanded safeguards to keep the election machinery free from political influences both from the states and Centre, and observed:

“We are going in for democracy based on adult franchise. It is necessary therefore that every possible step should be taken to ensure the fair working of the electoral machinery. If the electoral machinery is defective or is not efficient or is worked by people whose integrity cannot be depended upon, democracy will be poisoned at the source; nay, people, instead of learning from elections how they should exercise their vote, how by a judicious use of their vote they can bring about changes in the Constitution and reforms in the administration, will learn only how parties based on intrigues can be formed and what unfair methods they can adopt to secure what they want”.

Those words spoken slightly more than seven decades ago assume critical relevance when question marks are raised on the impartial functioning of the EC and the way in which the decisions of the executive became a factor for the CEC and other two Election Commissioners to interact with the PMO, by completely losing sight of its constitutional mandate to keep itself at an arm’s length from the government.

The unmistakable legislative intent of the Constituent Assembly is for the independence of the Election Commission.

The Supreme Court in its judgement in T.N. Seshan Chief Election Commissioner…vs Union Of India observed on July 14, 1995:

“The Preamble of our Constitution proclaims that we are a Democratic Republic. Democracy being the basic feature of our constitutional set up, there can be no two opinion that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country. In order to ensure the purity of the election process it was thought by our Constitution-makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference. It is inherent in a democratic set up that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day. This objective is achieved by the setting up of an Election Commission, a permanent body, under Article 324(1) of the Constitution.”

The legislative intent of the Constituent Assembly in favour an independent EC is held to be sacrosanct by the pronouncements of the Supreme Court.

Therefore, it is incumbent upon the CEC and other Election Commissioners to follow the letter and spirit of Article 324 of the constitution which embodies the legislative intent.

In attending the meeting of PMO, the CEC and his colleagues have contravened the legislative intent and endangered the constitutionally ordained independent status of the EC. It is the bounden duty of the Chief Election Commissioner and other Election Commissioners to restore the independence of the EC so badly compromised by their own actions.

(S.N. Sahu served as Officer on Special Duty and Press Secretary to former President of India, K.R. Narayanan. Courtesy: The Wire.)