NDA government’s haste in going ahead with the selection of candidates to the office of the ECI raises serious concerns of conflict of interest

Second appeal to Rashtrapatiji to intervene to protect the democratic traditions of the nation

election commission of india

To


Smt. Droupadi Murmu

Hon’ble President of India


Respected Rashtrapati Ji,I take the liberty of renewing an earlier appeal made to your high office vide my letter of March 10th, 2024 to intervene urgently and advise the political executive at the Centre to comply with the directions of the Hon’ble Supreme Court on appointment of Election Commissioners, direct the SBI to make a public disclosure of the details of the donors who gave donations to political parties under the Constitutionally invalid Electoral Bonds Scheme (EBS), direct the Election Commission of India (ECI) to invoke its authority under Article 324 of the Constitution to freeze all residual amounts lying with the political parties received under EBS to prevent their use/ misuse in the ensuing elections and direct the ECI and the NDA government to recall BJP’s nominees on the Boards of the Bharat Electronics Ltd (BEL), Electronics Corporation India Ltd (ECIL) and the SBI to stop the BJP from directly getting involved in the management of those companies with the possibility of influencing the electoral process. 

In my first appeal cited, I further requested your office to set up, in consultation with the apex court, a panel of sitting judges of the Supreme Court to examine the circumstances under which Shri Arun Goel, one of the two remaining two Election Commissioners, resigned or forced to resign, as the case may be, in view of the disruptive impact that the said resignation has caused in enabling the ECI to conduct elections in a free and fair manner.

It is a matter of serious public concern today that the ECI which has the Constitutional mandate under Article 324 to conduct elections in a free and fair manner seems to have abandoned that mandate altogether, as is evident from its unwillingness even to meet a delegation of senior leaders from the opposition parties seeking to represent to the Commission their reservations about the legality of deploying Electronic Voting Machines (EVMs) in the elections. In the past, the Commission displayed unwillingness to displease the senior leaders of the political executive by not proceeding against them for their hate speeches violative of the Model Code of Conduct (MCC). 


By selectively deploying the Central investigating agencies to harass the leaders of parties in opposition and sparing them of such harassment once they join the ranks of the ruling party itself, the party in power at the Centre has upset the level-playing ground among the political parties to gain an undue advantage over them.

The latest threat to the idea of the nation’s elections being conducted in a free and fair manner arises from the hurried manner in which the NDA government is proceeding to select candidates to be appointed to the two vacancies in the Commission, on the eve of the coming Parliament and Assembly elections  

Meanwhile, violating the ethical norms of leadership and respect for democracy, the NDA government, having waited for five long years to notify Rules under the Citizenship Amendment Act (CAA) as a result of widespread opposition and pending litigation, abruptly chose to notify the Rules under that Act only a few days before announcement of the elections, a move that is evidently aimed by the ruling party to gain undue electoral advantage vis-a-vis the other political parties ((https://www.theindiacable.com/p/on-election-eve-modi-rushes-to-fill?utm_source=post-email-title&publication_id=105593&post_id=142511875&utm_campaign=email-post-title&isFreemail=false&r=396bv&triedRedirect=true&utm_medium=email).

The latest move by the political executive to select candidates to be appointed to the ECI, through a highly non-transparent procedure, in violation of the advice rendered by the apex court, raises serious concerns of conflict of interest, as it amounts to those very same persons who are going to contest elections to the Parliament shortly would be selecting the two members of the Commission which is expected to oversea their electioneering activity, which will literally convert the Commission into an appendage of the executive. This does not augur well for the future of our democracy.

While it is necessary to ensure that candidates for the two vacancies that presently exist in the Commission are selected at the earliest, it is equally necessary and imperative to ensure that the procedure of such selection remains totally transparent, objective and equitable from the point of view of all political parties. To ensure such transparency, the following changes in the selection procedure are considered essential, despite the fact that some of them amount to a deviation from the provisions of the the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 (ECI Act, 2023)

The ECI Act, 2023 is not in conformity with the suggestions made by the Supreme Court to ensure that the procedure for the selection of Election Commissioners remains transparent and objective. The legality of the said Act has been contested before the apex court. Keeping this in view and keeping in view the fact that the present moment is an extraordinary one as the ensuing elections are only a few days away and the party in power has resorted to multiple means of unduly influencing the elections,  there is an urgent need to adopt the following changes in the selection procedure. 

  1. The Chief Justice of India (CJI) should be co-opted as a member of the selection committee, with the Prime Minister heading it and the leader of the largest political party in opposition being the third member. The selection Committee should not have anyone else. 
  2. The “Search Committee” under Section 6 of the Act consists exclusively of Secretaries to the Government who are under the administrative control of the political executive. The manner in which the Search Committee prepares the panel of candidates to be considered by the Selection Committee is highly non-transparent, which restricts the choice of candidates to a few, without the Selection Committee having access to the criteria on the basis of which the panel is prepared. In order to render the search process more transparent, the details of the candidates considered by the Search Committee for inclusion in the panel and the eligibility criteria on the basis of which their candidature is taken into account should be placed before the Selection Committee and also in the public domain for the political parties and the public to see.  
  3. Section 8(2) of the present Act empowers the Selection Committee to consider persons other than those included in the panel. Unless the criteria to be followed in choosing such candidates are spelt out in advance and disclosed in the public domain, the choice may prove to be subjective and arbitrary. It is therefore imperative that the necessary criteria are defined in advance and disclosed for the other members of the Selection Committee, all the political parties and the public at large to see.  
  4. If any member of the Selection Committee does not agree with any aspect of selection, his/ her dissenting view should be placed in the public domain
  5. Even though Article 324(5) of the Constitution indirectly treats the Chief Election Commissioner’s status as equivalent to that of a judge of the Supreme Court, Section 10 of the Bill downgrades his/ her status and that of the other Commissioners to that of the Cabinet Secretary. This provision indirectly diminishes the stature of the Commission and adversely affects its relationship with the executive. It is necessary that all the three Election Commissioners have the status of a judge of the Supreme Court and all of them subject equitably to a fixed term of office and statutorily laid down conditions of service, with the procedure of their removal made sufficiently rigorous, providing them a sense of independence from the political executive.

What the nation faces today is an extraordinary situation on the eve of the general elections when around a billion voters of India will choose their legislators. Some of the above special measures may require legislative changes. Since they are necessary from the point of view of ensuring that elections are conducted in a free and fair manner, they are inescapable. By evolving a consensus among the political parties and in consultation with the apex court, your high office should perhaps ask the Parliament to enact those changes as a special case to save India’s democracy. 

Meanwhile, the ECI should be directed not to announce elections immediately pending a decision on the above issues, ask the Commission to freeze all EBS amounts lying with the political parties, ask the political executive to recall BJP’s nominees on the Boards of BEL, ECIL and SBI, compel the SBI and the political parties to comply with the apex court’s directions on disclosure of details of EBS donations with special reference to the details of the donors,  and direct the political executive to desist from taking policy decisions and issue directions from now onwards.

Respected Rashtrapati Ji, kindly consider that extraordinary situations such as this one call for extraordinary responses and in the context of what is happening today, the entire nation looks up to your office for intervening urgently, decisively and effectively to make sure that the visionary expectations of Dr B R Ambedkar and the other elders who drafted the Constitution remain fulfilled and the nation’s democratic traditions are fully upheld.

Respectfully,

E A S Sarma

Former Secretary to the Government of India

Visakhapatnam

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