Questionable integrity?

The appointment of the 26th Election Commissioner of India on February 19, 2025 has sparked controversy and debate about the Election Commission of India's (ECI) independence and neutrality. As the commissioner will oversee 20 assembly elections, presidential and vice-presidential elections, and preparations for the 2029 national polls, concerns about bureaucratic neutrality are valid, especially in a developing country where such neutrality is often considered a myth.

At the heart of the controversy is the Chief Election Commissioner (CEC) and Other Election Commissioners (ECs) (Appointment, Conditions of Service and Term of Office) Act, 2023. This law has been challenged in the Supreme Court, which deferred hearing the plea on February 19, 2025. Critics argue that the Act gives the government significant influence over the appointment of the CEC and other ECs, potentially undermining the ECI's independence.

The ECI plays a vital role in ensuring the integrity of India's democratic process. Its responsibilities include conducting free and fair elections, maintaining electoral rolls, and regulating political parties and election campaigns. Thus, as an autonomous and permanent constitutional body, the Election Commission of India (ECI) plays a vital role in ensuring the exercise of the right to vote by Indian citizens and as the constitutional guardian of Indian democracy.

To enhance electoral transparency and accountability, the ECI has introduced reforms such as the use of technology, voter education programmes, and the Model Code of Conduct (MCC). The Commission also enjoys administrative, advisory, and quasi-judicial powers with regard to elections, as mandated by Article 324 of the Constitution

However, the controversy surrounding the appointment of the Election Commissioner highlights the need for robust safeguards to ensure the ECI's independence and impartiality. This includes establishing clear procedures for appointments, ensuring the security of tenure for commissioners, and preventing government interference in the ECI's decision-making processes.

The newly formed high-level panel for selecting Election Commissioners has raised concerns about its political nature, with critics labelling it as a "sinister and openly partisan move." This panel, comprising the Prime Minister, Union Home Minister, and Leader of Opposition in Lok Sabha, seems to give the ruling party significant influence over the selection process. It is true that Prime Ministers have always been selecting the CECs and ECs but the fact remains that an executive-driven process cuts at the root of the constitutional principle of having an independent body to hold free and fair elections.

This development is particularly concerning in light of the Supreme Court's judgment in Anoop Baranwal v. Union of India (2015). The Court had ruled that Election Commissioners should be appointed by a three-member committee consisting of the Prime Minister, Leader of Opposition, and the Chief Justice of India, until Parliament establishes a formal appointment process.

The new law appears to be an attempt to circumvent the Supreme Court's judgment, which aimed to ensure the independence and impartiality of the Election Commission. This move is also contrary to the vision of BR Ambedkar, who sought to free the Election Commission from political control. The concerns surrounding this new law are valid, as it may compromise the integrity and autonomy of the Election Commission.

India's democratic republican framework, modelled after the Westminster system, is rooted in the principles of checks and balances. This system is a product of the Indian Constitution, which guarantees adult suffrage and an independent electoral process. Interestingly, India adopted universal adult suffrage all at once, despite initial reservations from British Prime Minister Clement Atlee, who doubted the feasibility of democratic republics in Asia.

Jawaharlal Nehru remained committed to democracy, and adult suffrage became a cornerstone of Indian democracy through Articles 325 and 326 of the Constitution. This was a long-standing demand of the Indian National Congress. Philosopher Radhakrishnan aptly described adult suffrage ‘as a powerful tool for breaking down social and economic barriers’.

The Constitution also proposed the right to vote as a fundamental right in its first draft, highlighting the importance of citizen participation in the democratic process. Overall, India's democratic framework is designed to ensure the active involvement of citizens in the governance process.

Article 324 of the Constitution of India ensures the independence of the Election Commission by providing its members with a fixed tenure. They can be removed only through a resolution passed by both houses of Parliament with a special majority, either due to proven misbehaviour or incapacity. This rigorous removal process is similar to that of a Supreme Court Judge.

Furthermore, other Election Commissioners can only be removed with the recommendation of the Chief Election Commissioner, highlighting the CEC's key role. This provision demonstrates the framers' intent to safeguard the Commission's independence, a fundamental pillar of India's democracy.

However, the exclusion of the Chief Justice of India (CJI) from the selection process for Election Commissioners under the new law has sparked concerns about the independence of the Election Commission of India (ECI). The concerns are rooted in the fact that it results in the removal of a crucial check on the Executive's power.

Critics argue that this move may erode trust in the ECI, which is essential for a healthy democracy. Studies by Lok Niti have already highlighted a trust deficit, which could have far-reaching implications for India's democratic framework. The controversy surrounding the new Act has led to petitions challenging its validity, with the Supreme Court yet to deliver a final verdict.

Former Chief Election Commissioner (CEC) Quraishi criticised the new bill, arguing that it will lower the status of the ECI and its top officials. He further pointed out that remunerating top officials equivalent to bureaucrats could lead to a loss of status, making it difficult for them to take action against politicians. In most countries, Election Commissioners are themselves judges, emphasizing the importance of their independence and impartiality.

The concerns raised by former poll officials about the new bill's potential impact on the Election Commission of India's (ECI) independence and credibility are valid. The ECI's independence is crucial for ensuring free and fair elections, and any perception of partisan influence could damage India's reputation as a democratic leader.

The issue of electoral bonds is also a significant concern. The Supreme Court's directive to publish details of electoral bonds has raised questions about the transparency and credibility of the ECI. Electoral bonds, introduced in 2018, allow individuals and corporations to donate money to political parties while maintaining anonymity. Critics argue that this anonymity undermines transparency in political funding and could lead to quid pro quo arrangements.

To address these concerns, it's essential to reconsider the issue from a broader, democratic perspective. This includes ensuring that the ECI maintains its independence and integrity, and that electoral bonds are transparent and accountable. The international community, including organisations like USAID, which has funded initiatives to strengthen Indian democracy, will be watching India's actions closely.

Ultimately, upholding the trust of citizens and the international community in India's democratic institutions is crucial for the country's future. This requires a commitment to transparency, accountability, and independence in election management.

Fr. John Felix Raj is the Vice Chancellor of St. Xavier’s University, Kolkata and Prabhat Kumar Datta is the Adjunct Professor of Political Science and Public Administration at Xavier Law School, St. Xavier’s University, Kolkata. Views expressed are personal