Frequently, governments confronted with questions of propriety have been haunted by and taunted with the ancient Roman axiom ‘Caesar’s wife must be above suspicion’.
The adage found its way back into the Indian political discourse last week as a five-judge Constitution Bench of the Supreme Court heard a petition calling for a review of the mechanism for the appointment of Election Commissioners and Chief Election Commissioner at the Election Commission.
The immediate provocation is what has been described as the “hurried” appointment of Arun Goel as Election Commissioner. While the government responded by stating that the appointment followed a ‘time-tested convention’ the petitioners are arguing for a collegium-type body including for the appointment of the ECs and CEC.
The ideal, as per the Constitution, is that the CEC be empowered with a six-year term and removal possible only by impeachment as in the case of a judge. Unfortunately, regimes have leveraged the punctuated gaps in the provisions to skirt the ideal. The bench pointed out that no CEC has completed the stipulated tenure of six years since 2004. There were six CECs during the ten-year UPA rule and seven in the eight years of NDA.
A quarter of a century after he demitted office, Tirunellai Narayana Iyer Seshan, who read the riot act to political parties, continues to be the gold standard. There is no denying public expectation of the ‘Seshan effect’ at the helm. It is said justice must be seen to be done. Similarly, conduct of elections must be seen to be truly free and fair. The pleas before the apex court arise from perceptions of inadequacies and the approach of the Election Commission on an array of issues.
The parties in Opposition have, for over a decade, questioned the timing and arrangement of voting phases. More serious is the discernible public disquiet over the accommodation of political practices by the Commission. Activists have illuminated faultlines and listed a number of issues, many of which remain unattended.
These include the presence of candidates with criminal records, the use and abuse of money and muscle power, misuse of administrative mechanisms by governments in power, political advertisements, manipulation of media coverage and more.
The issues have been highlighted by a succession of committees - the Indrajit Gupta Committee, the Tarkunde Committee, the Goswami Committee, and the Vohra Committee. The imperative for reforms has also been illustrated in the 170th Report and the 255th Report of the Law Commission.
Every election arrives with statistics on the number of candidates with criminal records. Many of these are indeed cases originating from political agitations, but there is no escaping the reality of candidates accused of heinous crimes contesting and winning elections. While expense limits for candidates have been enhanced, they do not match ground realities. The humongous rise in election expenses is manifest in the landscape. One stark feature underlining the role of money is the data on cash seizures during elections. The 2019 Lok Sabha polls witnessed the seizure of Rs 3456 crore. In the recent assembly polls, just in Gujarat, cash, drugs, freebies and metals worth Rs 290 crore were seized by November 30.
Prima facie, the Commission monitors the expenditure of candidates, but public opinion is sceptical of due diligence. The 255th Report of the Law Commission quotes scathing observations made by Courts on the role of money power. It bears note that while government policies discourage the use of cash in daily life, the role of cash in politics is unfettered as candidates and political parties continue accepting donations in cash. What is troubling is that the new electoral bonds scheme, pending judicial scrutiny in the Supreme Court, shields donors and parties and denies the electorate a view on who is being funded by whom.
The Commission’s status under the Constitution obliges it to propel electoral reforms across parties of political persuasion. It has struggled to build consensus. Governance is interrupted by the annual parade of polls. Simultaneous polls may be difficult, but why not consolidate it as this column suggested and hold it every two and half years? The explosion of the internet and social media renders old norms about campaign stops obsolete and calls for the recasting of rules. The freebie culture affects fiscal prudence and threatens economic security. The EC has left the field open for political parties to promise freebies. As this column observed, the critical factor is the need to align public expenditure with a public and not political purpose. It must step in to order transparency on how parties will fund freebies and their impact on existing welfare.
Elections in India can be safely divided into before Seshan and after Seshan. No doubt there was political pushback. His powers sought to be diluted. Yet Seshan made a difference. He deployed the letter and the spirit of the law to install order and credibility. Yes, appointments and empowerment matter, but so does commitment. Beyond the legal scaffolding Seshan earned stature in the court of the people. What is sorely missing is the intent and the Seshan effect.
Shankkar Aiyar
Author of The Gated Republic, Aadhaar: A Biometric History of India’s 12 Digit Revolution, and Accidental India
shankkar.aiyar@gmail.com