Opinion | Election Commission: Four Questions To Ask India's 'Neutral' Umpire

Phase 1 done. Six more to go. Over the next few weeks, few institutions across the universe will be under more public scrutiny than the Election Commission of India (ECI). In performing its solemn national duty, which is to ensure free and fair elections, not only must the ECI be fair, but they must be 'seen' to be fair in all they do.

Since 1950, the ECI has earned itself a reputation of being an umpire whose task is to ensure a level playing field. The phrase 'neutral umpire' is superfluous, because an umpire, by definition, is meant to be neutral. Independent, non-partisan, effective, fair, efficient, are adjectives that must fit snugly into the pockets of the black and white coats of the neutral umpire. But do they?

1. Has The Appointment Process Eroded Credibility?

In Anoop Baranwal vs Union of India (2023), a Constitution Bench of the Supreme Court unanimously held that the selection of the Chief Election Commissioner and the Election Commissioner would be done by a three-member Committee consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India. The ruling stated that the architects of our Constitution "did not intend the executive exclusively calling the shots in the matter of appointments". The court also referred to what Dr. B.R. Ambedkar said in the Constitutional Assembly debates, "the election machinery should be outside the control of the executive government".

The Chief Election Commissioner and Other Election Commissioners Act, 2023, states that the President will appoint the CEC and ECs on the recommendation of a Selection Committee consisting of 

1. Prime Minister as Chairperson,
2. Leader of the Opposition in Lok Sabha as member,
3. Union Cabinet Minister nominated by the Prime Minister. 

In effect, this now gives the Union government de facto power to appoint the CEC and ECs.
A former CEC called this act "dilution of the authority" since these changes attempt to equate the Election Commissioners with civil servants, and the "political class cannot be disciplined by civil servants". "Judges are given an independent stature under the Constitution because they have to decide cases that involve the government, the Prime Minister and Ministers. That kind of independence is needed for the Election Commission too. This is sending the wrong message about the independent character of the EC," said this former CEC.

2. Has The Model Code Of Conduct Been Violated?

Since the Model Code of Conduct (MCC) came into force for the 2024 elections, even before the first vote was cast, 300 complaints by various political parties and 268,080 citizen-reported violations were filed with the ECI. The complaints ranged from alleged misuse of the National Investigation Agency (NIA) in West Bengal to conspire against the BJP's political opponents, "undue influence" through announcement of monetary benefits schemes, to multiple complaints against Prime Minister Narendra Modi seeking votes on religious grounds. The ECI responded to these complaints with a sweeping: "broadly satisfied with the compliance of the code by political parties and that campaign by various parties and candidates has remained largely clutter-free".

3. Morbi Bridge Tragedy Leaves Unanswered Questions

In October 2022, the ECI announced the assembly elections for Himachal Pradesh. Inexplicably, the announcement for the Gujarat assembly elections was held up by a month. The reason given was that "the gap between the tenure of two assemblies is 40 days". The Opposition was quick to point out that in the case of the Goa and the Uttar Pradesh assembly elections, the gap was 60 days, but the elections were still clubbed together.

Critics accused the ECI of batting for the BJP. The delayed announcement gave the party's star batsman some extra time (in the slog overs) to inaugurate projects in Gujarat. The Morbi bridge tragedy, in the home state of the Prime Minister and the Home Minister, happened during this period. Was the ECI equally culpable for the Morbi tragedy by not notifying elections in order to allow the ruling party to hurriedly inaugurate projects before the MCC set in?

4. Major Change To Rules Of The Game

Let me share a specific example. In 2019, the ECI tweaked a rule related to polling agents. The rule specified that one had to be a voter of that booth or an adjoining booth to be appointed a polling agent by a political party. What was the change made? The scope was broadened so a polling agent could now be appointed if s/he was a resident of any booth within the entire assembly segment. Political observers have opined that this could have been done to help the BJP in states where it has a comparatively weak organisational setup.

Postscript - City: Chandigarh. Voters: 35. Post: Mayor. Political parties asked for Decision Review System (DRS) like in cricket and the Supreme Court had to be the Third Umpire and overturn the decision.

(Additional credit: Chahat Mangtani)

(Derek O'Brien, MP, leads the Trinamool Congress in the Rajya Sabha)

Disclaimer: These are the personal opinions of the author