India’s 26th Chief Election Commissioner (CEC) has taken charge. There was expected political noise before and during the appointment of Gyanesh Kumar, and that noise is not to be frowned upon in a democracy. One has to only see the combativeness of the confirmation process for President Donald Trump’s nominees in the US to value this noise.
Having said that, let us get into the quality of the noise generated. Rahul Gandhi, who was on the panel to select the CEC, handed over a dissent note. His primary objection was that the selection panel should have included the Chief Justice of India (CJI), or the government should have waited until the top court decided on a petition that demanded it.
The matter was to come up before the court on February 19 (it was not posted for judgement though), but the sitting CEC was retiring on February 18. Therefore, the selection panel met a day before to pick a new CEC. The government’s outer layer of defence was in this chronology.
Meanwhile, the Supreme Court did not seem to be in any great hurry to hear the petition on February 19. It was reported that both the judge who was to hear it and the solicitor general were tied up with other cases. For some perspective, in a March 2023 judgement, the Supreme Court had included the CJI as a member of the selection panel, but the government had overturned this instantly by amending the law.
Interestingly, on February 15, in what looked like perfect timing in a perfect setting, Vice President Jagdeep Dhankhar, speaking at the National Judicial Academy, raised a larger issue of principle. He asked if a CJI should get himself involved in executive appointments. He said the involvement of the judiciary in executive matters presented a “constitutional paradox”. He felt there was a need to ensure each institution operated within its own domain. It was a valid question, and an assertion of the separation of powers.
The Dinesh Goswami committee in 1990 had not only recommended that the election commission be a multi-member body, but had also said the CJI should be on the panel to pick the CEC. From 1993 on, the commission became a multi-member body, but no government allowed the CJI to sit on the selection panel. The apparent reasoning here could be, as much as the CEC is expected to be non-partisan, shouldn’t the CJI also be kept free from the worldly business of appointments so that he is not mixed up when petitions against the CEC and the election body lands up before him?
Also, if one were to implicitly trust the neutrality of the chair that the CJI occupies, then by definition such trust should be extended to the CEC too. It is entirely possible that the chair quietly places the weight of history and legacy on the occupant and enables him to act independently. At least, that is the trust with which a democracy operates.
When such is the case, should Rahul Gandhi have merely dissented, which is his right, or implant doubt as he did? He had said the CEC appointment was a “midnight operation”. Are the two—doubt and dissent—same or is there a line of separation? In the recent past, Gandhi has had a problem with all things related to elections—electronic voting machines, electoral rolls, the integrity of the election commission, and now, the appointment of a new CEC. To add to this, there is the story of foreign funds to boost voter turnout. To the ghost of George Soros there is now the appendage of USAID.
In all fairness, Rahul Gandhi is not the only leader of opposition to embrace distrust wholesomely. L K Advani, as leader of opposition, cast deep doubts on any and all actions of the Sonia Gandhi-Manmohan Singh regime. For instance, Navin Chawla as both an election commissioner and CEC stoked controversy. As a commissioner, he was accused of unabashedly siding with the Congress by his own boss, N Gopalaswami, the CEC. Gopalswami wrote to the president seeking his dismissal. Not only was he not dismissed, but Chawla was made the CEC after Gopalaswami’s retirement in 2009.
Chawla went on to handle the 2009 general election in which, incidentally, the Congress-led coalition retained power. But tragically, under another CEC they appointed, V S Sampath, the Congress coalition was swept out of power in 2014. Similarly, under a CEC the Modi regime appointed in 2018, they saw a spectacular victory in 2019, but under another CEC they appointed in 2022, Rajiv Kumar, they saw an embarrassing loss of majority in 2024.
From 1950 till 1993, the election commission had only a CEC. When the Narasimha Rao government made it a multi-member body, the then strongman-CEC, T N Seshan, opposed the move in the Supreme Court, but lost. Making the CEC a multi-member body was in line with what the Goswami committee had recommended. The commission was indebted to the Justice V M Tarkunde committee that had worked under the guidance of Jayaprakash Narayan in 1974, just when the Emergency was looming.
One part of the Emergency’s history is about election fraud petitions and doubts about the overseeing body. After the 1971 elections that gave Indira Gandhi a massive win, there were multiple petitions in the Supreme Court, and the one by Jan Sangh leader Balraj Madhok was particularly sensational because he charged Indira Gandhi with using chemicalised ballots.
The assignments CECs undertook post retirement have also created retrospective doubt on their non-partisan attitude. After all the talk of uprightness, T N Seshan in 1999 contested the Lok Sabha elections on a Congress ticket against Advani. M S Gill became a minister in the Manmohan Singh government, and V S Rama Devi became a governor.
Despite these examples, appointments made by the executive branch have had diverse representation and wider accountability than one directed by the judiciary. For instance, the story of J M Lyngdoh’s appointment as election commissioner in 1997 by H D Deve Gowda was a culmination of his peculiar search for a Northeastern Christian candidate. Gowda wanted to signal to the Northeast, where he had politically and emotionally invested heavily, that he had their interests at heart. Lyngdoh turned out to be a shining example of probity and public service. Nobody complained about Deve Gowda.
(Views are personal)
(sugata@sugataraju.in)
Sugata Srinivasaraju | Senior journalist and author of Furrows in a Field: The Unexplored Life of H D Deve Gowda