On 18 February, just the day before the Supreme Court was slated to hear a petition questioning the dubious 2023 law passed by the Modi government regarding the appointment of the Chief Election Commissioner and other Election Commissioner, the Modi government used the same law to choose the successor of the outgoing CEC Rajeev Kumar and also appoint a third member of the Election Commission. The 2023 Act authorises a three-member panel headed by the Prime Minister to choose the CEC and appoint other members of the Election Commission. The other two members of this panel are Union Home Minister Amit Shah and Leader of Opposition in the Lok Sabha Rahul Gandhi. In effect, the panel thus becomes a Modi-Shah partnership with Rahul Gandhi only having the option of voicing his dissent.
In the event, Rahul Gandhi made public his rightful note of dissent in which he had asked the government to defer the meeting to choose the next CEC till the Supreme Court decides on the petition questioning the validity of the 2023 Act. Ironically while the government went ahead with the appointments, the Supreme Court has deferred the hearing of the case by a month to March 19. Two years ago, on March 2, 2023 a 5-Judge Constitution Bench led by Justice K. M. Joseph had underlined the need to keep the Election Commission free from the control of the executive and had prescribed a three-member panel comprising the PM, the Leader of the Opposition in the Lok Sabha and the CJI. The 2023 Act, passed without any parliamentary debate and scrutiny, made a complete mockery of the very spirit of the Constitution Bench verdict.
The Constitution had not made any explicit arrangement regarding the appointment of election commissioners, but the Constituent Assembly deliberations make it abundantly clear that the Election Commission should be absolutely free from governmental control. The Modi government first exploited this silence of the Constitution to fill the Election Commission with handpicked appointees, and when the Supreme Court chastised the government and prescribed a three member committee to restrain the executive, the government effectively overturned the Constitution Bench verdict by writing executive control over the appointment of the Election Commission into law. With the 18 February appointments, we now have the chain of CECs ready till the 2029 elections - following Gyanesh Kumar's retirement in January 2029, Vivek Joshi will take over to oversee the next Lok Sabha elections. Both Gyanesh Kumar and Vivek Joshi have worked closely under Amit Shah in the Union Home Ministry.
The record of Rajeev Kumar as CEC has awoken the whole country to the ominous implications of a compromised Election Commission. The Election Commission today does not just turn a blind eye to the brazen violations of the model code by top BJP leaders and the unmitigated hate campaign unleashed in every election by BJP star campaigners. Of late major discrepancies in the entire process of conduct of elections right from the preparation of the electoral roll to the counting of votes have been reported in various states. The EC under Rajeev Kumar never responded to serious allegations of procedural lapses and irregularities, trivialising all complaints and brushing them off in press conferences with facetious, sub-standard couplets. Democracy in India has never really had much participatory content for the people in terms of shaping of policies and their implementation or ensuring transparency and accountability of governance. And now if the electoral process too loses its credibility, democracy will indeed become a formal cover for dictatorship.
The Supreme Court must uphold the sanctity of the Constitution's essential understanding regarding the neutrality and integrity of the Election Commission, and the spirit of the March 2023 Constitution Bench verdict about restraining the executive from exercising undue influence and control over the Election Commission. The Parliament has the right to pass a law about the appointment of members of the Election Commission including the Chief Election Commissioner, but the law must uphold the core tenets of democracy. The Supreme Court had belatedly scrapped the Electoral Bond scheme calling it unconstitutional - it must not shy away from exercising its power of judicial review to scrap the farcical 2023 law which enables the government of the day to appoint an election commission according to its own choice. After all, the Supreme Court is the custodian of the Constitution and must not allow the executive to make a mockery of the Constitution and the basic spirit of democracy.
