Shri Ram Nath Kovind
President of India
I refer to the reported meeting taken by an official of the Prime Minister’s Office (PMO) on December 16, 2021 with the Election Commission of India (ECI), ostensibly to discuss certain matters relating to electoral reforms, already cleared by the Union Cabinet by then.
For the executive, particularly the PMO, to call the ECI for such a meeting, at a time when the political parties are actively engaged in campaigning for the Assembly polls to be held in some States shortly and the Prime Minister himself being among those campaigning, has raised concerns about the intent underlying the meeting.
The ECI being an independent Constitutional authority, it is unusual for the executive to call the Election Commissioners for such a meeting.
While presenting the draft Constitution to the Constituent Assembly on November 25, 1949, in his historic address, Dr B R Ambedkar expressed his concern at the possibility of the executive trying to subvert the institutions that the Constitution would provide and the need to thwart every such attempt to protect our democracy.
On June 15 & 16, 1949, the Constituent Assembly deliberated on the Election Commission’s role and the need to keep it out of the purview of the executive in the following words.
“so far as the fundamental question is concerned that the election machinery should be outside the control of the executive Government, there has been no dispute. What article 289 [now Article 324] does is to carry out that part of the decision of the Constituent Assembly. It transfers the superintendence, direction and control of the preparation of the electoral rolls and of all elections to Parliament and the Legislatures of States to a body outside the executive to be called the Election Commission………so far as the removal of the members of the Election Commission is concerned the Chief Commissioner is placed on the same footings as the Judges of the Supreme Court.”
This was the genesis of Article 324 of the Constitution in pursuance of which the ECI has been set up and the Commission discharges its onerous responsibility of conducting elections in a free and a fair manner.
The intent of Article 324 is that the ECI should not only function as an independent authority, apolitical in its character, but also appear to be so, as perceptions are as important in a democracy, as the deeds. As an authority entrusted with the conduct of elections, the ECI should win both the public trust and the trust of the political parties. It is an unwritten convention for the political party in power not to cross the lakshman rekha in this respect. When the PMO took the extraordinary step to call the ECI for an interaction, since it represents the political executive, it amounts to crossing that inviolable lakshman rekha.
As recently as on May 6, 2021, the Hon’ble Supreme Court, in Civil Appeal No. 1767 of 2021, in their judgement, observed that “the EC (Election Commission) has a track record of being an independent constitutional body which shoulders a significant burden in ensuring the sanctity of electoral democracy”. The sanctity attached to the office of the ECI should not be allowed to be disturbed under any circumstance.
Referring to the so-called “election reform” reported to have been cited by the PMO as the ostensible reason for calling the ECI, I may submit for your information that those in authority at the Centre displayed no hesitation whatsoever a few years ago, in hastily enacting amendments to the Companies Act to relax the ceiling on corporate donations to political parties, introduce a highly non-transparent system of channelling corporate donations through Electoral Bonds and retrospectively amending the Foreign Contributions Regulation Acts of 1976 and 2010 to open the floodgates to foreign donations, through the unusual route of the Finance Acts of 2016 and 2017 (https://thewire.in/221877/fcra-reviving-lapsed-law-amending-retrospectively-trumps-ethical-legal-barriers/). Apparently, the Centre did not consider it appropriate or necessary at that time to take the ECI into confidence, while introducing such far reaching but regressive legislative measures that amounted to introducing opacity in corporate donations to the political parties.
Recalling Dr Ambedkar’s ominous words referred above, it is essential that in order to “preserve, protect and defend the Constitution and the law” and safeguard the “well-being of the people”, it may be in order for your office, which is the highest in the nation, to advise both the political executive and the ECI not to cross the lakshman rekha that divides their respective domains of authority.
Such advice will undoubtedly go a long way towards reinforcing the public trust in the office of the ECI and protecting the democratic values enshrined in the Constitution.
E A S Sarma
Former Secretary to Government of India